and thirty point six five three constitutes an aggregated under aggravated felony under the i n a the answer is no this court has twice questioned whether admitting to sexual conduct  the conduct here if if you believe you accept the p i a s but take on this court owes deference to the rodriguez rodriguez definition which is a presidential decision but which does not decide this case this court does not owe deference to the decision bill low which was a non presidential decision that purports that big mining president i'm talking about deference to an agency ruling under chevron  lawmaking acts of the agency and under this court's precedent the presidential opinion is lawmaking for these purposes in non presidential position decision decided by a single member of the b i a is not subject to their chevron deference now there's been some reference to skidmore deference to the because the government understands that the decision below is not subject to chevron deference and st of all regardless of the status the current status of skidmore deference the decision below simply is not correct it's not persuasive and it should not be deferred to on that basis either reason it is a holding that this court is bound by so in flores the court admonished the b i a to consider whether the minimum conduct necessary to violate one engine it could it could it could be it's capable of being there could be additional items in that and they're correct it's including those particular factors it is inclusive but similar if you're going to add something but it's not it's not definitive it's not complete i think i think that's exactly right and i think under mugari that difference isn't it isn't there room there for a broader that that's not a pathetic all you're using here right what were that's the hypothetical that this court came up with in james and florence we're also using and it's not a hypothetical it's an actual decided case of judging either other touching of of not erotic  s right right so we've also come up again not with hypotheticals but with actual cases in which the sexual conduct issue or contacted issue was touching the neck or touching the navel so it's  even broader than just the mouth under the new york statute in years old and the person's eleven years old and the perp the other person is doing it for sexual gratification that should you're saying that that's not list right it's a broader definition of sexual contact and then a non exclusive list of erotic sounds that's right but if you look at the contact offense itself it doesn't reach it doesn't reach the kind of conduct that would be under the new york state law yes because the it's a sexually explicit contact conduct means actual or simulated sexual intercourse that's a much higher standard the new york sexual context statute and therefore that's why the body parts that are identified enumerated under thirty five dollars or nine they are you know the inner thought in the box and it's those go to sexual intercourse actual or simulated new york is a sexual context that you and it's much much broader and therefore that's why it reaches you know the neck or the nav so because of the new yorks that you is so much broader is not our point mr rodriguez was not convicted of an aggravated felony under the i n a and there is no grounds to deport him on that basis thank you very much we are from the government in mourning your honour's made pleas a quarterback in a hospice the united states attorney general the court should affirm the agency's finding here that the petitioner's conviction for touching the sexual or intimate body parts of a child under eleven years old for sexual gratification is sexual abuse of a minor petitioners claim that his conviction is overbroad as to sexual contact element is based on a fundamental misunderstanding of the board's approach to defining sexual abuse of a  minor the board in rodriguez rodriguez made it very clear it was not creating a definitive black and white standard this isn't that this isn't burglary there is not a discrete set of elements that rodriguez set out instead the board explain that it was adopting a useful guide in identifying the types of crimes that would be deemed sexual abuse of a minor and this court has repeatedly deferred to that approach is reasonable so we're all all of our each of those elements critical to the board's comparison of the federal of the i and a provision and the state statute of conviction that is the age of under eleven the body part contacted and the sexual gratification purpose it is are the each of those elements in the board's view a necessary component of an actionable conviction yes i think that the idea is  that the sexual contact in where it's directed and how minimal or not minimal it is is irrelevant when the elements include a very young victim and the touching is done for sexual gratification so it can be  your perspective yes and in the hair of the child well of course your honor the realistic probability applies and the state would have to prove beyond a reasonable doubt that the defendant had the sexual purpose of sexual gratification and i'll note that the new york state courts define intimate body parts by looking at sort of a totality of the circumstance and looking at the context of the crime and so for example the neck example of a petitioner has provided in that case the defendant stripped naked got into a bed with the victim and kissed the victim's neck and i think the court recently found in that contacts the neck was an intimate body part  so yes you are the government's position is that regardless of the touching this crime falls within the heartland of sexual abuse of a minor and every circuit court that i'm aware of to have look at the elements of the state statute and then see if they fit within this broad umbrella term that this court and out to refer to as a flexible and broad guide and the answer is yes if you look at the terms in thirty five or ninety eight the in terms of the generic definition of the word and that after you look at the totality in new york in new york yes this this the test is look at the contacts you look at what body part was touched you look at the context around it and i forget and there's a rd factor but then the court looks at sort of the totality of the circumstances in new york but the government's position is more nuanced touching is not required to be sexual abuse of a minor under the i and a and so it's sort of a red herring with the what body part the touching is directed in also in evaluating the state status you are aren't we looking not just at the text of the statu whether there's a realistic probability that the state prosecutes a crime that goes to the full extent of the statute potentially but we look to the elements of the crime and what it would nearly prosecute right or act so you know petitioners claim that it could be a pat on the head or handshake that wouldn't be there's no realistic probability that some of the prosecutor for that type of conduct and it's your honor and yet in others it is our position that even in the neck example in the naval example when it's done it's directed at a very young child for the purpose of sexual gratification there's no realistic probability that it doesn't fall within this really broad flexible definition of sexual abuse of a minor that this court has repeatedly defer grappled with the question that your honour's are grappling with today as whether there's a certain level of touching required in order for it to be sexual abuse of a minor and the circuit courts roundly have held that that there is not even a requirement that there be a touching in the  th circuit said when it involves a child under thirteen or fourteen in the th circuit it's personally abusive and here we have a very young child for the purpose of sexual gratification so unless your honour's have any other questions the and it's really not an issue in this case because the examples that were using of the breadth of the state statute st of all the kissing on the mouth was a dental filed by this court in james the other examples we've given again  not an exercise of the lawyers imagination but are actual reported cases that you know we're involved convictions so in terms of the touching of the neck of the contact with the belly button and we have a victim who under age eleven and the touching is for purposes of sexual gratification of the adult it seems not surprising that the agency would consider that sexual abuse of a minor wouldn't you agree  other general federal offenses that could be an issue so i don't know that just because you see some you know that there could be a moral operation of that that there is actually this is the generic federal offense t abandonment and that was not decided by the b a a so you know there are other ways to do this but in terms of this offense this is again the same the physical conduct aspect of this defense is simulat actual sexual intercourse in that context it really doesn't make it really is too broad to bring it to the extent of the new york statute and in fact the b a a selected thirty five  last statement so the real issue is whether there is actually some principled way of a done a falling the boundaries of the generic federal offense the government says well there's no elements this is that this court has deferred to that definition i think the difference cuts the other way if this court has repeatedly deferred to the use of thirty five or nine is a useful guide i think you have to use thirty five or nine as a guide you can't just disregard what it says thank you very much thank you both and we'll reserve decision and thank your firm and yourself for your service to the court and to your client on a proponent basis we