hear argument first this morning in case fifteen fourteen ninety eight lynch versus the mob mr nadler mr chief justice and may it please the court the court of appeals held that the definition of crime of violence in eighteen c sixteen b is unconstitutionally vague on its face relying on this court's decision and johnson holding the residual clause in the army career criminal act unconstitutionally day that was wrong for two reasons first the standard of vagueness applicable in immigration proceeding is not the same as in a criminal proceeding because the constitution does not require prior notice the conduct will give rise to removal and also because the immigration laws have long been administered by the executive in administrative proceedings because under broad delegations of authority because of the close relation of immigration to foreign relations and national security second though in any event under the criminal vagueness standard applied in johnson made clear in johnson that cases involving references to substantial risk are not inherently problematic and in fact there are there are many such such ones the court focused its an analysis analysis on two different aspects but they have they have features that sixteen b does not have to make sixteen be very distinctive and in fact that's the reason why why sixteen b has not given rise to the interpretive confusion that finally led this court in johnson to hold the aka provision unconstitutional the johnson to features and issue with the fact that we were asking or it's to imagine what the ordinary crime was and there was no way to even think about what is your adversary burglary if the ordinary crime is during the day there's one level of risk if it's at night there's a different level of risk the nature of the injury is at question whether it's course or merely walking through an open door uninvited it may be easier with burglary for lots of reasons but they are the liberal of what or what constitutes an ordinary crime was somewhat at the center of chances why isn't it the sensor here because i know there are several very important distinctions between this case and johnson with with respect to that  aka residual clause spoken terms of a serious potential risk that serious injury to another person might might result and as the court pointed out that created uncertainty about things that could happen even after the offense was committed and injury to people by standards or anyone else it could be section sixteen b is very different in that respect and asks whether the offense by its nature  corrupt presents a substantial risk that physical force will be used against the person or property of another and that's very different and several respects it confines the analysis and both the temporal and functional science to the elements of the offense you don't look at what conduct might not have happened afterward it focuses narrowly on the elements of the offense because the question is why the use of physical force might be used in the course of committing not affront may i ask mr nader because this aspect of your brief was a bit confusing to me just because sometimes you are talking about temporal and sometimes you're talking about functional and i want to know what you think the real limitation is so take the example that you use which is the possession of a shotgun example right and you say that that would fall outside of section sixteen and the question is why it temporally you know you're possessing a shotgun when you shoot somebody you can't do it any other way so the temporal analysis doesn't work so what is it about that example that makes it four outside of section sixteen where as you argued it would have fallen inside of well callous had no problem concluding that it was not covered in the reason is that blackout sixteen b requires a risk of the use of physical force the act of violent crime as the court describe in its use but it didn't have to come in and in it's use but then you take a case like burglary and you can say the exact same thing about burglary somebody could walk in on a burglary and all of a sudden there would be a use of force but a burglary could happen in such a way that nobody will kick in and there wouldn't be a use of force so again it just seems as though we're replicating the same kind of confusions and there's nothing that says the rates that are at least i'm trying to find out what you think so yes i don't i don't think so because another important aspect textual point in sixteen b is whether the offense by its nature presents a substantial risk by its nature means it in its natural ordinary sense and for example a no and the court said in no ordinary or natural sense could the could dui be regarded as the affirmative use of physical force it's not a violent you know iran i was very struck by that language too and i think it's that language more than some of the other language you point to in its brief that might suggest that there is some distinction between sixteen b and and the aca residual clause but on the other hand by its nature seems to suggest an elements focus a real elements focus look at the elements and ask given those elements given the nature of the offense what's going to happen but you know the elements section of section sixty in the section sixteen essay so it can't be all about elements so what is that by its nature doing well it's by by its nature of the offense which would incorporate its elements we think elements are central to both a n b a involves the actual actual use of force or threat and use of force or attempted you know use of force the element is the actual or threatened use of force were as under sixteen b the question is whether the elements out up to an offense in which there is a risk of force being used even if it doesn't have to and burglary i think burglary is a classic example it is a classic example of that and i think the why isn't also possession of a shotgun it's a classic example of that well let me explain if i may like burglary is descended from the common law and it's rationale is precisely because of the risk that the that the burglar will encounter someone in the course of committing the burglary and and it i s logical build into inherent in the crime of burglary that there may be a response to an uninvited entry into a home or or other structure by its nature of the transaction that those elements of burglary create the risk that force will have to be used the same is true of did not and give me a contrast and by contrast what that fell under the aca residual clause would not fall under sixteen b because the same thing could not be said well was precisely the crime involved in later cal where the court had no trouble in a two page decision saying that do you i is not covered because of the structural difference because there has to be a risk of the use of force which is not the accidental or sort of negligent conduct whereas in the gate the courts struggled with how to how to deal with that under the residual clause it created an extra touch will limitation the purposeful violent aggressive test in order to weed out negligent or accidental offenses whereas the explicit text of the of sixteen b itself takes care of that problem so that  important difference another important difference though that i haven't mentioned yet is that the residual clause tied the level of risk to the four enumerated offenses which were not consistent with each other and i think you're quite right you're correct i think that's the way that justin courts work and i think that i think the problem was not examples per se but but the fact that they were conflicting examples that i think the court came to conclude embedded in arbitrar into the aka residual clause in all its applications and that and that's affectively what the it was like an ingredient in that statute that made it incapable of consistent application that's not true here mr commuter it's absolutely right that the court in johnson said that those examples compound the problem but the essential problem that the court thought existed was the use of the ordinary case analysis so i'm just going to ask you the question that the court asked in johnson and i had how do we answer this question this is what the court said in johnson how does one go about deciding what kind of conduct the ordinary case of a crime involves a statistical analysis of the state reporter a survey expert evidence google gut instinct so that's a multiple choice test what do we do the because that is still the same under the statute well it i think it's not the same again unlike unlike in the uk a residual clause you start out by looking at the elements of the offense what are the elements of the offense such that by their nature they give rise to a substantial risk of injury for some offenses i think that you can look at the long history of the offense and burglary is an example indeed in layer cal this court said the burglary is a classic example of a crime of violence and in fact the senate report on this provision says the burglary is the classic example and if one looks of favor other historical materials it is because of the risk of force that might be used course this the statute also concern for us the property so certain offenses i think flight under that example i'm just trying to sort of ground this and you might be right i'm not you know i'm just trying to figure out what the difference is if we look at it that way because that doesn't sound so different from what we were trying to do in aca in fact it sounds kind of the same as honestly so give me vehicular flight how does it work killer flight from a police officer after being ordered to stop it is again if you think by its nature what what what what was the legislature in envisioning when and acted that and i think again it's parallel to burglary that the conduct is such that in the in the course of committing the offense in the course of the flight not something that might be collateral or down the road version is one that the legislature had singled out because of the particular risk so it's important to look at the state statute and what was the driving out what are the what are the elements what what harms was it goes back on his action of a shotgun because i'm running over in my mind my memory of the johnson oral argument where basically this cheese office made exactly this argument about possession of a shotgun how the elements of that offense are understood to give rise to a significant level of risk although i think the concern one of the concerns mentioned in johnson was what if the the shotgun might be used way down the road remotely from that from any remote in time from any moment in works the offense continues for the entire duration of possession but we're not saying that that's enough there has to be a substantial risk in the in the in the course of committing the offense and as for all of it i remember the government argued johnson and i don't remember the statistics now but they were very clear then that huge amount number of the crimes of position of a shotgun were led to criminal activity well i i think  court looks at the again the elements of the offense judicial interpretations of the statute analysis of what the state legislature was driving at state judicial decisions that might themselves describe what the risk is or the risk that was being the i had thought for the respondent for the respondent here you could say it's dictum because they they didn't really need to reach the issue based on their holding well i mean i think there are a number of things to be said about george you're right that the issue is not addressed the court applied what seems to be the same standard but it but it wasn't briefed and so the question of of of how it would apply in that setting wasn't addressed also you simply have to be parties for example one important but several important aspects of the georgia did not discuss this court's earlier decision in the mahler case in which the court indicated that there could be a looser standard of or would be a looser standard of vagueness in immigration cases specifically point out putting out a critical difference and that is that the ex post facto clause does not apply to immigration therefore a person can be removed for conduct that was not a basis for removal before you gauged in that conduct criminal criminal sanctions with harsher sentences than i think more than anything we have often said that they did this depends on the gravity of what is at stake today what's at safety and welfare of the country and and there still is the failed states that the attorney general in his or her discretion can deny can deny anyone the right to stay here but if we're going to ask immigration judges to impose the consequences that they do today we need something that's not arbitrary well so i can address several pieces about what while they're there are more offenses now that give rise to removal the same basic point obtains which is that a person can be removed on a ground that was not a criminal offense or it was not a basis for him at the time in gage to not conduct again whether it's a crime or not a crime that means that the l n has no constitutionally based right to notice and therefore the notice piece of the vagueness doctrine has far less force if the current if the court were to hold that sixteen b brief there are a number of places in title eighteen were where the definition of crime of violence is used either by experts express reference to sixteen be or by use of those of the same formulation like a nine twenty four c where the same formulation is is is used only to be some of the most important examples well that would be that would be one there are sixteen b is incorporated into  s dealing with money laundering robbery i believe a number of other effect it's also used to determine whether a juvenile will be prosecuted doesn't that doesn't that suggest that the argument that the civil on its own it is it is a definition or identifying a category offenses that are then plugged in to some other statute either a criminal offense or the immigration laws and the immigration laws for example it's identifying a category of crimes that are able to constitute a ground for removal just like all of the other aggravated fel or they can refer to this behavior that this defendant engaged in on this particular instance so he said as i read it let's back up can't be done congress thought both in this statute and in the other wouldn't be that tough to categorize all the state criminal laws by their degree of risk of violence can't be done too many state criminal laws are used in too many different ways too many different words no statistics are kept the justice department can't get them so we're left guessing so let's back up and look at what this person did on this occasion what is your reaction to that well we have not argued sustained under under the criminal standard that may be one option it may be a particular option would have to have it argued but i think if you really did that i just don't know if you thought it through after yesterday's office about the pros and cons in case you needed to be done but in case you have done i'd appreciate your telling us what you all think even if it you're not stuck with it you know that's unusual well i mean you stuck with it i'm just curious there were obviously would be be advantages in the sense that the statute would be would be preserved and there could be questions though about how it would be administered to determine what actually happened on the prior occasion but one one place where you know the court might want to consider reserving if that were if that were an issue would be nine twenty four see where the where the crime of violence is contemporaneous with the possession of the firearm and so if you're not looking at a past offense you're looking at the overall offense in which the which the weapon was possessed it could i ask you just in thinking through your argument it would help me to get a feel examples so could you give me three examples let's say if there are and if there are those that many where we struggled under aca but where the answer is clear under sixteen bait so that i understand what it what kind of distinction you're drawing right i think do you i sort is the prime exam ample lead cal itself concluded the dui was not covered in a unanimous opinion it's only the court's only occasion to have to address this in thirty years because of the text of sixteen b the act that requires the active use of force i think the sawed off shotgun which this court and torres said was not covered by sixteen b and we believe that that's correct again because of that the you don't have to use force in order to possess that the shotgun even though injury could result under the aca clause perhaps and that's what that's what was otherwise like pollution offenses or or consumer product offenses might be covered so the court the court again was was juggling with the way the aka residual clause operates in order to figure out how to exclude that well there's no question that those crimes are clearly excluded under the arc of laws on the other hand some other crimes besides burglary like kidnapping or escape i think if one picture is those offenses they clearly present a risk of physical force will be you mr chief justice and may please the court is just a sort of your points out there were two critical factors this fourth pointed to in johnson that quote conspired to make the aca residual cla unconstitutional everyone agrees that they are both present here it's hypothesizing the ordinary instance the ordinary case of a set of elements in second and then from that hypothesis estimating the degree of risk of some sort and is justice ginsburg points out the government correctly back in johnson said that those two factors are in existence here in section sixteen b and that the residual clause here was quote equally susceptible to challenge there was something that isn't here mr rosenkranz and that is a long history of struggling and failing to come up with an interpretation and i'm wondering why you think we don't have that same history because i don't think that there's any question that we would not have said what we said and johnson had johnson been the first case johnson was the umpteenth case and we had gone back and forth and we had struggled and we couldn't figure out and and here we don't seem to have any of that it seems as though and not only with respect to this court but with respect to lower courts it seems that everybody's got him along just fine and much as i can't quite understand what the difference is there just does seem to be a difference in practice well it just escaped let me start let me give two answers the first is that this whole notion that the government is discussing about a different experience with aca than with section sixteen b is revisionist history every single case that this court decided was presented to this court in simultaneous search petitions in the sixteen b context and this court would then g b are the sixteen the cases in the lower courts and this court would then cross reference acca case aca residual clause cases about well what about sykes how would this turn out here what about chambers what about johnson itself every single one of those cases is coming back here we know that they're coming sykes is already that is the sykes issue is already presented as the circuit conflict right now in the lower courts it is roiling the lower courts there is a fifth circuit case where the majority and the dissent of psychs are being played out in the fifth circuit right now and the same will be true of all of those and then secondly it is simply not true just to say that the everyone is getting along just fine in the lower courts between our brief and the national immigration project we've identified ten circuit splits some of them on exactly identical elements and what is the problem with those cases the courts on either side it's not just that they're engaged in different elemental let me start with the with in the course which took a lot of mr need lawyers argument time to think what three things to say about it first courts have uniformly held that in the course of does in in sixteen be the phrase that the government is speaking of is in the course of committing the offense and so just to continue that first answer courts have held that incoherent offenses of the sort that justice kagan was asking about or possession offenses do create the risk and appropriately so because let's take another example that consumed a lot of time today burglary justice kagan is question about burglary notably that is why in lake how this court held that burglary did was sort of the classic example of a sixteen  violent crime burglary is this court said in johnson it's completed the moment you cross the threshold if all we're looking at is that temporal so what are the elements completed entering with the bad intent is what completes the in the elements so if someone enters they've completed the elements they can then ransack the apartment for the next five hours that is still in the course of committing the offense second answer the government's new interpretation does not change the fundamentally imaginary nature of the inquiry no matter what courts will still be imagining the ordinary case only now you have to further imagine ok in that ordinary case when are the elements typically satisfied and finally that textual difference is not actually a textual difference acas says the aca residual clause says the same thing in different of course courts and legislatures always have to imagine consequences when they're classifying crimes they have to define what burglary is because they know that in a significant number of cases certain importing sixteen b into the definitions of various crimes there's no vagueness problem because as this court said in johnson and addressed exactly that question in johnson it's a totally different when when you when you are applying the stated elements to an actual concrete example that is that they are before the court mr s across could i ask you this suppose congress enacts it a statute that said any person who commits a crime of moral turpitude in the district of columbia or with within the special or terror maritime or territorial jurisdiction of the united states shall be imprisoned for not more than twenty years w unconstitutionally vague your idea it would certainly be problematic and the reason it would be problematic is because you don't have an administrative agency that then gives content to the moral turpitude a language the way you do for example in the immigration context and by the way an agency two to which deference is owed but this is a statute sixteen b that is a criminal statute but that seems to me i mean that i'm surprised by somewhat surprised by your answer that seems to me to be at least as vague as sixteen b and yet the holding in the jordan case on which you rely was that that that a deportation statute that permitted deportation for a person convicted of a crime of moral turpitude satisfy the applicable they've been a standard there executive agency has defined people know what it means they know what's in and they know what's out but unless you're willing to say that the criminal statute that i hypothesized would satisfy vagueness standards making it a crime of mark saying anyone who commits a crime of moral turpitude sentenced to twenty up to twenty years that would be that would satisfy vagueness scheme or criminal side in a criminal statute it would not because there is no history i just want to be clear that in our view and in the view of all of the lower courts jordan saddles the question on whether it's the same standard for criminal and deportation but this court does not have to embrace jordan or even address the question whether it's the same standard sixteen b is a criminal statute that congress chose to import wholesale into the immigration laws and that that has criminal applications even under the i n a johnson talked a lot about the confusion caused by the predicate offenses that were listed in fact in colorful terms explain why those  compounded the vagueness are in the residual clause of course you don't have those here yes there are so so i would start with word with word justice kennedy started which is as a general matter one does not ordinarily think that giving examples makes something more vague than it would otherwise be and i know this court spent a lot of time trying to draw lessons from those examples with varying with the with actually with no success in varying methodology is to try to narrow what is otherwise a statute in the government's argument in johnson was that that congress succeeded in narrowing with those in numerated elements those in memory decline and crimes and this court concluded that it didn't but the statute that has examples even if they are confusing examples has to be better than a statute that what the statute as a whole might be because you can look at it is say well there's one of the examples but it seems to me that argument doesn't respond to the point that it makes the residual clause much more confusing if the example seemed to be pointing in different directions and involved different totally different consequences yes under basically what the court held in johnson so the fact that yes it's clear when you get to the specific thing that's named but that is the court explained it makes it much more confusing confusing when you get to the residual lines so i think the easiest way to look at this i would say is if that was the that had been the pivotal factor in johnson so johnson says there are two factors that conspired if it had been indeed that other factor the what this court should have done in johnson is to say we will now as a matter of statutory construction stop trying to draw lessons from those examples and interpret the residual clause in its own right without trying to figure out whether the examples teach something about the relationships this court had an obligation to save the statute if that's what was causing the problem it didn't and i think it was this court was very conscious of what it was doing when it said that there were two critical things that conspired to critical  elements that conspired to make the statute vague and then in welsh when this court repeated what its holding was its rationale was and johnson it repeated those same two critical elements not this suggested is well what you say is this you say that the constitution requires the creation of a did ministry of agency which will develop a tradition over time that will clarify but will otherwise that kind of reasoning was present in the non delegation dr so what you want to say is that which would that which would have saved a statute under the non delegation doctrine which is not fair competition delegation run riot but which is gives meaning is also necessary to save a civil statute from vagueness that's a very interesting holding i'd rather read in a lower  article then i would write those words which will suddenly become real wealth so i'm not i'm not you see where i'm floating on this i see your point is quite similar but i've quite worry about the implications well let's talk about the immigrations and its use of the implications that is in the immigration context to begin with in the immigration context to the extent that your honor the that you were quoting just as prior from i was emerging car i'm happy to be confused about it but i confuse you all the time with him so to the extent that we're focusing on a language that appears in the immigration deport you or not and it was couched in terms of delegation because it was pretty chevron in pretty shocked or poultry but this court said no the fact that there is a discretion doesn't bother us now the second  answer is in the immigration context as distinguished from perhaps any other context it's just the sort of mayor was saying the immigration context in particular is a context that implicates liberty with th beer wrist sorts of consequences so would a minimum in the immigration context completely apart from the public good sorts of questions that applications of this of mr worth that and i guess i would have thought that your answer would have been different i guess i would have thought that your answer would have been john whatever implications johnson had for vagueness doctrine it has already had and that all you're asking us to do is just essentially to say that this statute is no different from the statute that we look at in johnson and to write an opinion that basically just repeats johnson and whatever implications it's had where it will have it will have regardless and this opinion would do nothing more thank you your honor yes but she said ok my dear but what is it i mean if that's your answer it totally ignores the fact that this is not a criminal case and it certainly is true that deportation has more severe consequences than the typical civil case but there are many other civil cases that can have a devastating impact on someone such as what child  custody loss of a professional license complete destruction of a business loss of a home now assuming that there is some sort of vagueness standard that applies in civil cases i would have thought your answer would be that it's a sliding scale and that the standard for civil cases is not the same as the standard for criminal cases but how much specificity is required in the civil context depends on this court has described as the grave sword of consequence which directly implicates the liberty interests this court said it's at the same level as something exactly the way the court what the court sent or at least it's not necessary to rejoin word in that way and i've been jordan can be read to say look the dissent has raised this new argument it wasn't briefed it wasn't argued that the dissent says this is unconstitutionally vague we're going to apply the criminal standard here and it satisfies the criminal standard it didn't say assuming for the sake of argument but i think it can certainly be read that way and if you don't read it that way you are stuck with the conclusion that a statute making a crime of moral to punishable by a felony term of imprisonment would satisfy the vagueness standard for a criminal statute which i think is very difficult to defend well so your honor let me say that again two things the first is this court doesn't have to decide whether jordan quaid criminal cases and civil cases with the so most severe consequences because this is a criminal statute that this court is interpret ng and it has criminal consequences even as imported through the i am just what would you say the same thing if it didn't increment if this statute did not incorporate a definition that is also used in criminal statutes and simply had the same standard in a purely immigration structure so reference to a definition that also applies in criminal case i would have a different argument but but let me just be clear this court has said and it said it in a b small it took a statute that was held unconstitutional and this is back in one nine hundred twenty four twenty five found is that though the statute that this court found unconstitutional in the criminal context it was then applied it was a silly breach of contract case applied as a defense and this court said no when we struck it over there we're going to strike the civil ramifications here as well in this court could adopt a very narrow holding saying that when what congress has done is to make the decision to import a criminal statute into a civil context it brings the soil with the roots in it and there's no such thing it's and it's actually incoherent that i don't think that makes the slightest bit of sense a person we're a criminal statute that says that it is a crime it is a felony to charge an unjust rate and then the since there was a civil statute that incorporated that at we would say well because you can make it a felony to charge an an on just regular price you can have that in the civil statute and incorporated into the civil side your honor you just reciting the facts of a b small that was exactly the statute there it was struck in the criminal context it was then imported as  defense in the civil context in this court said in a small we don't care whether it was civil or criminal it was struck there were going to strike it here in and there's an important kind of separation of powers reason to do this congress made the decision to the two congress didn't congress could have used different words and revise the statute but think of it in the rico context let's take a classic case that this court has decided the definition of gangster this court held in lands that is unconstitutionally vague a court couldn't then in a civil rico case adopt that same standard say that is the predicate crime and impose trouble damages it would be incoherent to tell the lower courts that what you do is take a stab that would be unconstitutional they are and imported into the civil context and i puzzled it is constitutional here let me give you a very practical reason on the facts of this case so in this case mr dimaio gets deported on the grounds that the statute is sufficiently clear and he is an aggravated felon he then comes back to the united states the next day and can be process and will be prosecuted as an aggravated felon but as an aggravated felon there would be a different standard and he can't be prosecuted it would make no sense to happen scheme where the same words that would that use the same statutory definition are means something in one context as this court hole would hold hypothetically in this case but in the sixteen b context when it or in the context of the definition of a crime mean something else  obviously i mean the score burglar was not before this court the first is this is california burglary which looks very different as this court held in de camp from a normal burglary california burglary can be committed between the elements clause and the residual clause i'm actually having trouble coming up with an example of a situation of a scenario in which a crime does not satisfy the elements clause because there is no element that requires the use or threat or attempt to use force but on the other hand quote unquote by its nature requires the use of force the moment you finish satisfying you when i say yes burglary is that burglary can't be that a burglary is committed the moment you cross the threshold and by the way in california it doesn't have to be unlicensed crossing of the threshold so a burglary is committed when you cross the threshold even if you're crossing the threshold lawfully if i understood what he was saying and i want try to put words in his mouth but it was something along the lines of yes it's true that the elements of burglary do not have the use of force but if we look back to the historic understanding of burglary what we find is a long standing concern with exactly that subject it's that burglary wouldn't have been defined as it was wouldn't have been prosecuted as it was except for this fear of the use of force i don't know that that's the best i can do with it and now tell me if he can do better so your honor i can't do any better that sounds like the ordinary case approach which creates the mischief when you layer on top of it an assessment of risk what is the principle of law the baby small i mean no one thinks of statutory words in the civil context and just around reasonable that struck the those words down in the criminal context so what is the principle that won't stand your yard that the principle of law that a b small stands for that i was arguing specifically is the principle of law that when a court strikes a statute that congress has made the decision to impose criminal and civil consequences to that statute is gone and you don't start preserving the civil consequences to it because congress made the decision and we just follow congress's direction i do want to close with one last point which is about the practical consequences of this ruling first i already said in the criminal context the practical consequences are very limited because as this court observed in johnson practically all of the applications of sixteen b are applied to a concrete set of facts then the question becomes what in light of the notion that this court has not decided a lot of sixteen b cases should this court try to engage in the same exercise in the sixteen b context that was a failure in the aca in the aca time context but in deciding whether to take that route this court has to decide what is to be gained by that enterprise the enterprise of setting the lower courts a drift of considering the risks of the use of force from statutes that do not have use of force at and as an element at some point this court is going to have to decide whether it's had enough and it's not like we don't know where this case is headed where the where this inquiry is headed just disc a given unveiled all of the next sets of questions they are all coming here we have seen this show before we know how it ends this court after sakes will be a james redux chambers redux if you look at our brief with the list of examples of circuit conflicts they're all coming here or the national immigration project's brief cites another five circuit conflicts they are all coming to this court and it's this court will be overwhelmed with the exercise of trying to figure out what the ordinary case of each of those thousands of statutes is just as it was overwhelmed and finally gave up the exercise in in johnson so we know that it's coming we know where it's going to end so this court should just end it here and it should end it now thank you your honors thank you counsel mr nadler three minutes thank you mr chief justice of first we explained in our opening brief in reply brief that there is simply not the disarray that there was with apply the statutory standard of creating a risk to particular state statutes and as we explained the conflicts that they assert are largely that but if i could then go on layer colors the only case this court considered in the court there considered it clear that it was able to say the dui was in and berg burglary was indeed you i was out and that's because of the to of the sort of textural differences between this statute and that one it requires not some injury down the road but physical force actually being used or risk of physical force actually being used by their word and on the evidence there were some who argue that you're a good driving that the minute you get behind the car the but the important point is this court clarified it out to say that it's an act it's a category of act of violent crimes risk of of physical force or actual physical force under sixteen and again burglary this court said made up that this court said burglary is included because by its nature it involves a substantial risk that the burglar will use force against the victim in completing the crime the same thing is true with kidnapping you can kidnap somebody by invigorating but the risk of forces that will try to escape and you'll have to use physical force so that i don't think the court is at sea it can it can look at what the state statute is driving at and and apply the standard many also many statutes have civil and criminal applications but that doesn't mean  invoke the criminal law standard a b small on the court got to the civil context that said there was no intelligible standard which was which was a much more relaxed standard finally on immigration immigration is vested in an administrative agency so there is always the the intervening action by the executive and even in the situation where the agency may not get deference there is still a centralized control over the bringing of the cases and the board of immigration appeals can say this is out this then the courts will only see the cases where the b i actually sustains the removal but that has a way of limiting and giving and giving notice to people with respect to so thank you coun