we're here today asking the court to remain and mr b atauro someplace to the board of immigration appeals with instructions that the board apply the modified categorical approach to the i would tampering with records statute the issue in this case is whether the board of immigration appeals and the immigration judge properly denied mr b atara a hearing on his application for cancellation of removal as a non legal permanent resident because both the immigration judge and the board of immigration appeals found that his conviction for tampering with records was categorically a crime involving moral turpitude the petitioner is in agreement with the government on one point in this case if the court finds that the statute is not categorically one involving moral turpitude then the court should not proceed to the modified categorical approach because neither the i j a nor the board of immigration appeals actually applied the modified categorical approach our argument is dia was a legal permanent resident charged with having been removable as convicted of a crime involving moral turpitude there are a couple reasons why that distinction fails first the board and the government want to turn this into an issue about the burden of proof the respondent concedes that the burden of proof on him is on him to establish eligibility but this first question of whether the i was statute is categorically a crime involving moral is solely a legal issue so it doesn't really make sense to talk about that as a burden of proof issue the second reason that both of us still controls the outcome in this case is the procedural facts that occurred in mr via toros case you'll note from the intimate administrative record at page six zero six the case began as a sole charge of inadmissibility for having entered without inspection so the government chose not to in the notice to appear allege that mr b atauro had been convicted of a crime involving moral turpitude had the government proceeded that way there would have been a hearing on the initial remove ability the government would have the burden of proof to submit t conviction documents and establish under either the categorical analysis the modified categorical or the third step of what's called sofa trevino analysis that the crime involved moral turpitude the government didn't do that so mr  application for cancellation of removal claiming that his removal would result in exceptional and extremely unusual hardship to his us citizen children that was then set for a hearing and this could be a mr b atauro showed up for a hearing there was an off the record discussion the parties came back on the record which is shown at page eighty five of the administrative record and the government conceded that butorac had established the hardship but the important for this case because it's similar to both would be in that at that stage in the proceeding for the government to prevail the same way as in both videos case the government had to prove that this was categor statute it would so if you look at the the recent supreme court cases talk about analyzing convictions analyzing the elements of the offense how would i not see how the giving a false name in a traffic stop would be falsifying or removing a writing or record if it would only be covered by the iowa statute with the i'm a statute makes it a crime for knowing that the person has no privilege to falsify destroy or conceal a writing a record with the intent to deceive injure anyone conceal any wrongdoing so if you give a false name you are falsifying then the officers report when he writes that information down on the ticket with the intent to possibly deceive the officer into thinking you're somebody who is not or injure the have any iowa case that says that a motorist falsifies your record by giving you know accurate information to the officer who then writes it down and still i'm not sure that's the natural reading of the statute we believe that it is the natural reading of the statute and there is not much case law on the i would tampering statu and we believe that the b i erred when it read that requirement in it that you had to have an actual case to point to if you have to have an actual case then why should it be limited to an appellate case why not a district court case why i wasn't necessarily asking if you need an actual case i just wondered if you had one because that would show whether your argument is plausible if there is no case will we can read the statute and decide for ourselves them in a plain meaning in a plain sense and determine whether that categorically involves moral turpitude what about in the requirement of intent to deceive isn't there a good bit of authority saying that a crime that has that mens rea qualifies there is and we also concede that we are arguing that the board of immigration appeals erred because they didn't do the divisibility analysis so under silva trevino and under de camp when you have a divisible statute the bill which part are you saying would not qualify intent to injure intent to injure anyone intent to conceal any wrongdoing is broader than the intent to obstruct justice that was found not to categorically involve moral turpitude the intent to conceal any wrongdoing doesn't necessarily even have to be illegal wrongdoing just on the face of the statute the intent to injure could be a de minimus injury we don't know what level of injury is required on the plain meaning of the statute similarly the other elements under the i was statute that are broader than those that were involved are the  writing a record a writing has its own definition under a code seven fifteen eight point one it's generally governmental documents and things of that nature the record could be a private record it could be an employment record so that's broader than involved at dia where he was required to give a fictitious name or a fraudulent id even the first part of the ira statute is broader than what was involved at dia the falsifying destroying removing or concealing those offenses are less active and are more passive than giving an officer a fictitious name or id and again since this includes private actors it could be something you give or conceal to your boss to conceal something you didn't want them to know calcify understand you can correct me if i'm incorrect the relief you're requesting is that we would remain and ask and be i to conduct a modified do modified trade work with the modified category of approach you're just looking at the trial information the guilty plea the sentencing order and the restitution order if there is one and then determining if that helps you decide which part of the divisible statute analysis would be that since you're talking about a conviction involving moral turpitude under de camp and moncrief you no longer look at the actual conduct but that issue frankly isn't before this court because the board didn't even apply sort of a tribunal step one they did not line up the generic definition of a crime involving moral turpitude and then look at the permutations of the i was statute to determine if each one of those permutations was the same or narrower than inherently bas deprived conduct so they looked at the statute and said it's under this chapter that involves fraud but the actual elements of the offense do not involve any element that is fraud they work not have the force of law maybe i won't even defer to itself on our this member on the same issue because it was unpublished finally it is important to remember that the board and the immigration judge did treat this as a motion to pre term that mr b a tour of the application and for that reason they denied him the hearing to the extent that the board also misapplied some of it for the you know the board stated that he had to point to an actual case where i will apply this to conduct that did not involve moral turpitude if he has to point to an actual case that then becomes a factual issue if it was a factual issue then he should have the should have been allowed an individual hearing on his application and as you can see from the record at the administrative record at ninety one and ninety seven his decision was issued via telephone at  master counter or a preliminary hearing well how do you suppose the board should go about answering that question if it's not allowed to look for a specific case the board should first on the categorical look at the only the elements of the offense and make a legal determination and really this is then the immigration judge should then go to the modified categorical approach had they done that analysis it could have ended the case right at that point and if that still doesn't resolve the issue then that's when the application should have a hearing all the factual issues should be developed the immigration judge going like question was if to require the petitioner to furnish a case how would the board decide that whether iowa extends the statute to that conduct just based on the elements and some estimate of what  things i would do exactly that's all that's required under the de camp case as you look at the elements of the offense and decide if those are the same or narrower than generally well you know isn't that what the board was doing but just using the absence of cases as evidence of what the iowa courts would do well i think that the main error was that the board imported that fraud element of the offense which we believe was impermissible at that point it should have just been a legal issue that they can and it's a step one it's supposed to be hard for the government to prove that it's categorical match at step one so at step one if there is a realistic probability not a certainty again an actual case would be would refer to a certainty if there's a realistic probability that these elements in this offense could be applied to nine target of the two misconduct because they are so broad and then the board should let the case proceed to hear i would like to reserve my last minute here for  he didn't do that the board expressively noted that he failed to do that in fact there are any cases that would take in iowa that would take this case outside of that context and judge cotton you have to be had a case there vehicle title under a false name falsifying vehicle titles to show an exemption from the use tax when transactions were taxable and attempting to obtain and i would driver's license using a false name and social security number those are the five cases the subjects of the five cases none of those cases was raised by petitioner as a reason to take this case outside of the categorical context none of those cases in my opinion takes this case outside of that the issue and i'm not entirely clear on why that comparison really matters but i disagree i think that i was here is far more specific it involves the intent to deceive injure or conceal any what i see what he's trying to do but i think that the court's focus in every case in the board's focus the agency's focus in every one of these cases should be on the statute at issue in that case so i see what he's trying to do with it but i think that we should keep our focus on i would doubt you and i disagree that that i was decherd is broader than the minnesota intent to it intent to obstruct justice i think that that is a far more vague and undefined term than intent to deceive intent to injure intent to conceal any wrongdoing and i think that those three intent involved in iowa statute are far more consistent with the sort of full panoply of the i m t cases and the types of conduct that we talk about when we think that's not that the fact that fraud is not an element here does not take this case outside of the realm of crimes involving moral turpitude it doesn't make the conduct here intrinsically ok or not intrinsically wrong and that's the focus that intent what's happening with this statute that's where the focus should be that's where the board's focus was when you say it's not divisible wouldn't be divisible in the brief along these lines but the sake of argument why wouldn't concealing any wrongdoing be very close to the obstruction of justice i think i think in the court was concerned and focused a little bit more on the actual conduct that occurred in that case on the fact that and the fact that minnesota prosecute under that obstruction of justice standard even if the attempted obstructing that concern is really evident here when you have a statute that prohibits concealing a wrongdoing you have someone who is acting in bad faith who is acting in a manner that is intrinsically wrong i also frankly don't think that recanting sort of takes you outside of the crime involving moral turpitude conduct or context because the increase statute based at that level finally just to see him one last point that he brought up suggesting that he should have had a hearing on the realistic probability issue that once once the agency decided that this was categorically a crime involving moral turpitude and place the burden on him that he should have had a hearing i disagree he should have raised his legal arguments in his appeal to the board and he certainly could have presented as i said earlier any any iowa case or air cases that he thought would satisfy that burden of proof and he didn't do so which is really the basis of the board decision the board looked at this doc shoot they looked at the knowingly they looked at the intent to require deceive injure or conceal any wrongdoing and they looked at his failure to come forward with any case or any argument event that would the court can certainly do then we we argued that it in our brief that that's certainly one way to decide and i also think that because the court had to know the review over the legal issue there is some room here and if you wanted to go farther and board didn't consider both video properly we think they erred in that respect and my final point is we really on the legal analysis want to avoid having to get into two facts specific pointing to particular cases knowing it doesn't really mean knowing they were arguing fact didn't really mean fact under the reasonable and natural or natural and probable consequences doctrine under california thank you