good morning your honour's man please accord attorney robert jacobs on behalf of the petitioner this case comes down to two primary boiled down issues one is that the realistic probability test in doing this alvarez was satisfied here such that the crime of indecent exposure under california statute three fourteen one is not categorically a crime of moral turpitude and the second primary issue is that even if it was determined by this court to be categorically a crime of moral turpitude it should not retroactively apply to the petitioner here plea back in two thousand and two when case law under california courts and the board of immigration appeals clearly did not render that california statute categorically a crime of involving moral turpitude and going back to the realistic probability test the california statute historically has been more broad than the generic federal definition of a crime of moral turpitude which requires for a non fraud offense it requires an intent to harm actual harm or protected class and the indecent exposure statute under california law does not encompass as people have been convicted for that particular offense for offenses that are more broad than that general indecent exposure law here see if we can if i understand this correctly since noon yes the decision of the ninth circuit the b i a has that you can be convicted of a crime under california law when you when you're not necessarily you can engage in actions that involve moral turpitude well it seems like looked at three b i eight cases i'll be at their their their old cases and to derive its definition but it included that lewd intent was the central factor that brought indecent exposure within the definition of the crime of moral turpitude why was that not reasonable because the court should have looked more specifically to the california statute although the california statute does require lewd intent it is clear that it had been applied in situations in the past to situations in which it's not clearly lewd difference should be applied correct yes or all right now would you're saying is that the chevron difference that is a that that would normally be applied here should not be applied because they didn't follow california law but does that make it an reasonable isn't or a way of looking at the determination as saying well some people would say think this way some people will think interpretation by the board and prior case law so he clearly reasonably relied on he knew that fact and when we look at the r activity well and also the court in this case and in many prior cases did not challenge the petitioners eligibility until after cortez medina had been published and so there was no other intervening cases that that would have alerted him to the possibility that this would be categorically a crime of moral turpitude then we look to the monk amerie word factors and see if they apply more to toward the petitioners favor as opposed to applying it retroactively to him and the first factor is whether this was a case of first impression and we argue that it was not a case of first impression that it was well established that the board president was that is not categorically a crime of moral turpitude the second factor is whether there was an abrupt departure from law or whether the board decision was merely to clear a void in the law we argue that it was a departure because the non fraud crimes required it's not fraud crimes when you're analyzing whether of convictions a crime of moral turpitude requires intensive harm actual harm or protected class and the california statute three fourteen for  exposure didn't require those elements third was the reliance issue which which i had previously mentioned the petitioner did have reasonable reliance and a fourth is whether it's a substantial whether there are we argue there's the fifth standard there's no clear interest in departing from the years of the presidential case law and departing from the crime of moral turpitude definition in that you requires good morning your honor as i'm erica miles for the attorney general i just wanted to quickly recap the issues that are before the court and in case you have any questions but you know first and foremost as we argued brand x applies t board was well within its authority to interpret the crime involving moral turpitude term under the i and a it was it within its authority i guess my question is was it was reasonably derived it was reasonably derived it is rooted in in it is directly consistent with excuse me the broader definition for crime involving moral turpitude which is a requirement of culpable mental and one of them was a prostitution case i just wonder if that's reasonable to look back that many years to determine whether or not that l necessarily be considered by looking at the board also looked at other indecent exposure situations as well from the past in addition to the prostitution so in the prostitution or prostitutes related context it did note that lewd was the linchpin as to why an offense was brought over into the moral turpitude world and it looked at other indecent exposure cases and found that those cases did not constitute crimes involving world turpitude because while knowledge or intent to expose one's parts in public was a requirement it did not have the further intent of being sexually motivated or of being lewd of the intent was not that others would see let alone that it would be to arouse or gratify so the board did a comparison of prior indecent exposure cases with the current with with the almost always involve an intent to harm someone of the actual infliction of harm upon someone or an action that affects a protected class a victim  how is that what is represented in the new cortez medina because it seems like it's saying in cortez medina that lewd intent brings the offense of indecent exposure within the definition of c i am t and doesn't really address actual injury upon someone or a protected class sure the board the board over the years in addressing non fraud offenses has case by case and time by time come up with definitions such as this beyond the broad definition for cia entity they come up the board has developed for certain types of  incineration in the board's determination because that is not a requirement under the board's statute the requirement is is more the intent of the actor or of the defendant and looking at what their conduct and what their state of as a prank i guess mooning somebody maybe his classmates those actually were those two different cases there is a moving case and then there's a twelve year old just combine that for a while that wouldn't be mooning would would not  meet the a mooning child would not have been convicted under the statute because janet tell you must always be involved so then currently would be mooning if it so in the moonin case which the court which the california courts looked at instead sure it's bad judgment sure it's a tasteless prank but it was moon it mooning and it did not rise to the level of indecent exposure because there was no showing of an actual sexual motivation behind the mooning that it was just an intent to expose buttocks but genitalia were not even involved in the mooning incident in the incident involving the twelve year old in the  doubtless in the lionel case with the twelve year old there was exposure of genitalia and the scenario was that the boy waited and targeted the two girls and wanted to make sure that they saw his exposure and it was to either arouse or gratify or sexually affront so he was convicted under the and recent exposure statute so that's the difference there but california you brought up the point here with mooning and pranks whether or not they rise to the level of under you know this real reasonable realistic probability test mooning would never qualify and nobody would ever be convicted under three fourteen because you must expose janet's hellyeah it must be intentional exposure and it must be with the intent to either sexually gratify sexually aroused or sexually affront somebody and the board the board did explain is the relevant time period that this retroactivity question needs to be looked at examined through the time he pled guilty and in two thousand and two there was no board precedent at the time specific to indecent exposure cases other than where they found just knowing exposure wasn't enough or prostitution types cases with lewd behavior but there is nothing specifically where the board would or would not determine the board's existing definition firstly i am generally crumbling moral turpitude generally was a culpable mental state and reprehensible conduct it has to be sort of a base vile or deprived type of  board in two thousand and three found that mr newness was convicted of a crime involving moral turpitude and all this background i say to give you the picture that there is no abrupt departure here from board not be deemed to have been convicted of a crime involving moral turpitude unremovable for that this is quite different than the scenario the poor the court's most recent case and garcia martinez which found him permissible retroactive application and that case the board had a departure of seventy years of precedent regarding examining theft as a crime involving moral turpitude they changed with the basic elements are here there was no change there was no precedent there's no reason he could even rely on the fact that he wouldn't be removeable this very finding why is the two thousand and two time period relevant i guess i want to understand what you're saying on that because when the court looks at the time it reliance is is the key here so when somebody either please or is convict did well at that time and up until that i mean  correct not in two thousand and two when he was convicted but when he made his decisions regarding how to proceed in the immigration context and how to argue his immigration case in two thousand and twelve it certainly was  two thousand and twelve it was yes so i am curious as to why you're pointing to two thousand and two versus two thousand and twelve when he's in the midst of all of his decisions because he was in fact he had to make some but there's no the outcome doesn't change if he didn't argue it and but the juror does it mean the outcome doesn't change i mean he gets relief potentially if he says it really didn't and he did and he did argue and he made every argument that he could at the time that my and my point was if he was wrong he still had to make that argument and try and persuade which he did he did everything he could well if given the state of the law chevron deference at that time the board had found in a non presidential decision that this very offense is in fact a crime involving moral turpitude this court then  to create its own generic definition of an ambiguous term to which the board would be zero difference had it had a definition and the board has sensed disagree so it's still we still have the state of x being a possibility of the board being able to come back with a definition to sit in the first instance because they're the agency there they have the authority to come back and further clarify and say we see we need to clarify here that for indecent exposure cases and the board then laid out a generic definition for the class of indecent exposure and it has done that in the past it wouldn't be it wasn't the first time it's done it for theft but the definition of the broader definition because that then we did not have we did not have a generic definition for indecent exposure so the state of the law at two thousand and two was the general definition for crime involving mor which is a culpable mental state and reprehensible conduct so that was without any intent to injure that has never been the board's definition the board has never required an intent to injure or intent to harm or a protected class a victim as a blanket definitional element never it has it has done so on sort of a waiting or sliding scale for specific classes of crime but not that intent to harm or actual harm or protected class a victim was going to be an element for sexual offenses so that was the generic definition applied in newness and it's important because here there's another step here we haven't talked about is an application of the california statute to that definition and the newness court looked at the california statute through the lens of the defense of the definition that it carved out requiring those harm protected class of victim elements so now when it's back before the board the board created its definition under its brand x authority for indecent exposure which is willful exposure of private parts with a lewd intent and through that l the board examine the california statute and the board's interpretation in the board's examination of the statute to find that it meets its generic definition is reasonable and within the bounds of the law and as applied in mr the  first regarding the retroactivity issue the petitioner would have had other not necessarily direct relief but other strategic possibilities in the form of as mentioned voluntary departure but also post conviction relief  california under penal code section ten sixteen point five and also fourteen seventy three point seven which are very different motions to withdraw the please had he known going into that merits hearing in court expungement secondly i want to state where it is this and the board here is basically saying there invoking chevron and brand x you directly contradict precedent case from the ninth circuit  knows exactly what happened to brand x well that's correct that's correct your honor but here they're import imposing this realistic problem probability tests in which there were prior cases and so by the fact that there were prior cases is evidence that it is a realistic probability that that that there could be a conviction under california that's outside of the definition of moral turpitude and here they gave a five year window and said basically from the time that from the time the news was published in two thousand and ten they said where are the new california published cases or unpublished cases on this issue and the board said that in two thousand and fifteen so they basically gave a five year window and said if you can't show any new cases that there are there's a conviction in california under the indecent exposure statute that's outside of the moral turpitude definition then you're going to lose th then we're going to find that there's not a realistic possibility that's ludicrous to give a five year window now they're basically if the court agrees with with their decision that could set a precedent for the board undermining the circuit courts throughout the country and giving such a short window of time to come up with a new case this is a this is a conviction that it was a misdemeanor with maximum six month sentence so it's not necessarily the type of conviction that people are going to be running to the appeals courts develop heels on so the fact that there's no published cases should not be held against the petitioner well if we carry the maximum six months