your entire time remaining yes your honor i believe the main issue in the case today is whether or not menacing is a crime involving moral turpitude person commits the crime of menacing if by word or conduct the person intentionally attempt to place another person in fear of imminent serious physical injury in state b garcia we see the historical account of menacing it's origin is a tort rather than a crime eventually it did develop and was made a crime it's more similar to assault and apprehension crime than it is to a threat crime it's simply written without much context there's no injury required it could include emotional outbursts or violent outbursts that are quick and fast in addition defense of self or defense of property can be a defense as we've seen in court ruled that it was an error that the trial court did not allow the defendant to present jury instructions regarding defense of property there are more circumstances around that single menacing incident that happened in the driveway there were other threatening events that could lead to a defense of property further the government does rely on  is a case in the ninth circuit court of appeals where there are three requirements for this terrorist threat crime to be a crime involving moral turpitude that the threat of death or great bodily be threatened that the victim believed that it would be carried out and it was substantial harm and reasonably in sustained fear and that there was a specific intent that the victim feel that t it is intentionally attempts to place another person in fear so there is a specific intent required why doesn't that reflect the the kind of vicious motive that would make this a crime  is a course of conduct it requires more than one of vent to occur and in chan mannie it was a terrorist threat that begins with a a threat of crime of violence and that differs then organise patsy i'm not aware of any case that says that you have to have multiple indicators for an offense to qualify as a crime involving moral turpitude so in this particular state statute there is a requirement that you have the intent to create fear of imminent serious physical injury the are you have do you have a case to cite me too that says multiple requirements must be met before an offense qualifies it will cry latter pacing doesn't say multiple requirements must be met but it says that they find that terrorist threat is a crime involving moral turpitude for three reasons they don't say any one of these reasons alone would qualify this crime as a crime involving moral what's the maximum penalty for the organ crime of menacing it's a misdemeanor and the maximum penalty is three hundred was three hundred sixty five days in jail however that recently changed in two thousand and seventeen mainly because of the way that it does affect undocumented persons and it's been changed to three hundred sixty four days however that is not retroactive so the change in penalty was in two thousand and seventeen and this crime i believe occurred in two thousand and one so it's not that sentence the sentencing that existed at the time that was convicted of menacing was three hundred maximum penalty three hundred sixty five days punishable as a misdemeanor the other crime cited in the government's brief they law to be saying is a is a wobbler it can be is mentioned in those cases a crime of violence so for instance in latter saying it was already determined that it was a crime of violence and an aggravated felony i believe in so the statute also differs in that way and i think also looking back at the origin and state of garcia where this crime was derived from it it was seen less than an assault in fact it was a tort and it later developed into a being charged as a crime in sort of its side category not under assault but i think it would be different if mr bo were charged with an attempt of an assault with a deadly weapon that would be an aggravating factor here it's just very very simple there's no context to it it is only a misdemeanor punishable lie three hundred sixty five days at the time although that's been changed if you have any other questions how does that change  change doesn't it doesn't affect this case except in light of it's not a felony it's not a more serious crime although i know in crna that's not to be taken when it seems to require somewhat more than an assault in the stand promote fear of serious injury well no injury is required  think it's different in that way it's also an attempt crime so there there is no crime menacing is just it's an attack attempt a crime so it's different than an assault crime my time is up possibly at the borders that's the government's position the request in this particular case changed do you want us to hold the case or just kind of note that the reconsidering the issue for the record certainly holding the case in advance would at this point be advisable to let the agency provide its views potentially in a public decision on this matter unfortunately just a bizarre quirk of timing that i happen to set the case for argument as an exact time that this court heard it honor so i do want to let the court know that that potentially it might be advisable to hold this case in the bands pending a decision on a case again just unfortunate timing that happened to match up like this but at each other in society it's not to make people feel death or serious physical injury what is it to use the party did in this case that constitute theory in light of what the records reflect what is it nevertheless what is it that you say he did the corps the conviction what is what was he convicted of doing well there's not a large amount of information record largely going to a fight with a knife and i beliefs scraping the side of a car with a knife but again we're not looking specifically petitioners conduct in this categorical approach so what petition did is irrelevant unless they claim that his conduct was not was somehow an example that took this case outside of her moral turpitude and they have not claimed that so this point in what he did specifically is not relevant that take it outside of the crime involving more turpitude because when you looked at the least culpable conduct that could secure a conviction under this statute and attempt crime doesn't require much requires substantial stuff here but we are talking about a crime of apprehension if anything it makes it worse because not only did he want the person to fear death or serious physical injury he actually attempted to make it there's not simply well you know what i'd like a sickly brandish a bat at the person's really far away when there's no real substantial step towards actually the act could the causing of actual bodily injury but you're brandishing it in an intent to cau fear wouldn't that also be sufficient for a conviction under the state statute well i think this is difficult they were do run up against joining us alvarez and i appreciate sometimes the court's frustration in c i m d cases because i'm not a state prosecutor i'm also not the state court we can't use our legal imagination to prose well this could have led to the conviction we don't that's exactly what the category of categorical now this is is you look to the elements not to the actual conduct of the particular petitioner a defendant but you look to the elements to determine what could lead to a conviction and then whether that then is a crime or turpitude i think the government's best argument is that the specific intent is required but this is a misdemeanor statute and now the penalties been changed to three hundred sixty four days so it could even qualify as a petty offense conviction so yes first of all that i think the the strongest factor here really is a specific intent because when you look at vicious mindsets that tends indicate that he really wanted this occur this to determine whether or not to be i a s interpretation of the statute was reasonable correct so we are not sitting here sort of an empty process we are looking at an agency decision that obviously none published decision knowin skidmore deference to but when we look at this case as decision ladder saying the bourses in and johnny when we look at is no actual harm is ever required i mean let's take the ninth circuit's decision on bo marmalade whole compos drunk driving on a suspended license that's it no element that anyone ever came into any possible harm whatsoever no intent to cause any harm  cause any fear there are no elements to a c i m t as the course of repeatedly recognized this is an incredibly nebulous term so what we have to look at is what does each instance say how we see agency interpret this and this is not simple salt again assault aggravating factors now petitioner can't simply ignore that what he wanted to do is make someone fear death or serious physical injury injury so this is not simply desiring someone fear being tapped or something what are the generally the examples legislative give hold holding a gun up to someone threatening them with that's a fear the fact i would just add on to that that the like the government counsel mentioned the victim doesn't need to have any type of fear in fact it could be a bad attempt at putting someone in fear and it could be so little as by just using words and i think in many of these cases we look at intent and we look at the injury that it's caused and in this case the injury that it's caused there's no causation of that the b i did look at several different cases but didn't look at the specifics of each type of crimes this crime is so general that it doesn't exactly compare i would argue that we would also like to argue for the court to make a decision because the board of immigration appeals has had several opportunities to make a precedent decision even in this case and i think that they're really looking at it is also a sign that this is questionabl they've had several opportunities and they haven't made a precedent case thank you for letting us know your position on that thank you both counsel for your helpful arguments in this case the case just argued is that made it for decision by the court