kind of pick up where the prior argument left off callahan and judge when i think that you all touched the precise issue before this court is that when you as our heroes did not conduct the divisibility inquiry that mathis requires and in fact opinion and judge thomas didn't do it when he had they didn't do it when they had the chance so the concurrence doesn't realize they don't really address that issue and said it would be good for the court to look at that some point but we don't know if he meant it would be good to go on fox we don't know what i want to do conference and judge when would be sworn to secrecy as to what they might have talked about so we don't know the correct your honor but the fact that judge thomas took he a concurrence on the in addition to the majority opinion which he also authored to outline precisely why these two cases are clearly reconcilable is extremely telling about you know where this court is right now and and why it's it isn't at least mention but pushed me beyond tension right i was going to ask something that's a question along the same lines i think it can be argued given chief judge thomas this concurrence that there's definite tension there that at some point the circuit ought to think about going on to correct but it wasn't necessarily irreconcilable so there's an argument to be made there given how that opinion in co own and the way that a particular factual scenario can arise is to sought by one requires didn't can't read writing is different well so dry reading has since been collapsed into one way fifty one misdemeanor joyriding specify which of the terms that it's using and when the california courts explain articulate the elements of one of the five ones they do they will use the same three elements none of which require a particular theory and when we look at the statute on its face that confirms our interpretation which is that you know math has told us that a statute that assigns particular consequences or discrete consequences and to think about the clintons to a disjunctive phrase th him eligible purely for cancellation of removal it would not make him eligible for asylum unless this court addresses the particularly serious crime issue and remand on that and even worse this court to address the actual issue and the particularly serious crime and grant remember on both of those issues withholding encounter two entirely separate statutory bases for relief and if the court's going to remand on the odd felon on the particular serious crime those are also issues the court should remain on them because th emphasize three points st the agency to be ignored mr lopez's sexual orientation and its cop analysis this is fatal to the agency's caught analysis because the immigration judge failed to follow the cole line of cases mr lopez provided credible and uncontroverted testimony that he is a gay man and that he fears harm has returned to el salvador despite corroborating country conditions evidence the immigration judge ignored this risk of  other things that you talked about so serious are kind of you know they're not they're not just that not everything in a box so it's all of the things that you're saying the idea ignored were talked about just didn't as neatly handle it as you would expect so i am i'm not sure i agree i understand what your honor is saying and i think it's helpful to desegregate discussion of the facts in the opinion because this is one of the things that was so complicated and i'm clear about the immigration judge's decision withholding tot are completely separate analyses and you have separate standards the immigration judge so withholding asks just as to the particular social group but our client articulated on the basis of his sexual orientation does he have a fifty percent risk of persecution just on that basis because it increases  saying about the way that the hearing is conducted but it can't be a sufficient analysis for the cost claim because it's not the same legal standard and the immigration judge should have analyzed the risks all together and then aggregated them to see if they met the fifty he had been homeless previously since two thousand and six or something like that or not want time you've been homeless for several years your honor ok so  it is another factor that the government that the immigration judge did not consider in her in her cot analysis and that will go to the sexual orientation and the mental health because they raise this risk of torture for both of those reasons i see that my time is running short irreconcilable so i just want to really go quickly quickly take a broader view of the entire case and to see what math is actually did so st this concept of elements versus means has been around for a really long time the idea goes dull and then it proceeded the modified get a categorical approach that's important because the doll that a very deep dives into the state case law on what you need to prove why it's broader than the generic definition of theft and broader than the generic definition that because of that intent element in terms of accessory after the fact so the next year and two thousand and fourteen we get that decision and write down and then ran down relies on death camps and all that the ask what matches actually did it didn't start from scratch which is why i went through that whole history using up to a half minutes of my time what it actually did was resolve a circuit split and it resolved the circuit split in this court favor and so in doing so the supreme case and the only question before the court today on this issue is whether doing this alvarez is clearly irreconcilable with mathis and because baptists result the circuit split in favor of this court case law case law that cited doing this alvarez with approval the court should conclude that not only is refute the dissent argument which that which claimed that supreme court prior case thought did not intend to distinguish between statutes listing elements versus means the masses court rejected that contention it quote death camps and it said all those decisions rested on the premise that the laws contained statutory phrases that cover different crimes and not different methods in other words elements and not means and so that there's this funny little line and mathis from justice kagan and th majority and she's talking about this and she says a good rule of thumb for reading our decisions is that what they say what they mean are one and the same and i think that is important because you know during this address cited the elements you can't really tell from the california law so doesn't the ambiguity and nearer and nearer to the or the defendant or something along those lines i don't i don't think so i would disagree with that so with would want a more full some analysis and i mean you could say that about about any decision especially especially these these criminal categorical approach modify go approach visions they're so they're so complicated and yeah you want more you want more analysis you want more state case another state case that says something but the fact that it's side of a doll yeah there's some tension but yeah i'd like to see you know i i'd like a more fulsome analysis and if we were deciding that she did would it be more fulsome a little bit different for sure i think so but again the only question for this court is clear reconcile ability and what mathis did was result the circus circuit split in this court favor which sided r i remember my st move court for our oldest director and i asked for something like that and he not breaking character he said you would have to have to ask your solicitor general about that so yes yes i'm not disagreeing with that but i couldn't i mean it's already that the talk about  have here is a conviction documents that establish that mr lopez was convicted as a principal so the charging document alleges that he drove and took someone else's vehicle and he did so with the intent to deprive the owner of his  language of the statute and not to a specific count here mr lopez pled guilty to driving and taking someone else's vehicle with the intent to deprive a specific person of that property so count one doesn't match up with anything even remotely resembling after the fact sex accessory after the fact liability so with that in mind in california to prove accessory after the fact the state has to show it is under section thirty two the state had to show a felony but that what the state really at the  state had to show the defendant harbored concealed or a the principal in that felony with the specific intent the principle of void or escape arrest trial conviction etc there's nothing in mr lopez's charging document that even remotely resembles harboring concealing ating anything like that so our position is that it's driving or taking it doesn't matter what what really matters is the intent to deprive the combination thereof it's the intent to deprive so this has this case actually has both drive constitutes a particular his crime under their friend has a few factors now they're generally no jurisdiction to address that based on the nature of a conviction and circumstances all that stuff so that sure makes his argument saying that the immigration judge mischaracterized the record but there's nothing in the record indicating the onset of mr lopez's schizo front a symptom of the i j a noted that she noted that there were bipolar and depression but he had not yet been diagnosed there's no factual finding there is no evidence in the record indicating when mr lopez started experiencing those symptoms the earliest thing we have is two thousand and one when he said if you need a formal diagnosis council there is no need and there was no finding that there was a need all the immigration judge did she she noted that he was not yet diagnosed and so the board gave him the benefit of doubt on on review and said even if he was suffering from schizophrenia even assuming that was that was the case it's still a p s c and so again the court can't really have factors they only have to look to whether or not there's a legal heir and so it doesn't matter you're absolutely  correct as to when as to when the onset of his symptoms occurred to his conviction or his crime occurred in august two thousand but we don't know if he was suffering from schizophrenia symptoms and there is no evidence on the record either way so we really don't know and so there was no actual factual finding and so the immigration judge didn't even make an error she just said he was diagnosed with schizophrenia and the diagnosis is different from the onset of symptoms and so there is no error in that and in the end then the board's quick cleaned up by saying even well so this is a three thousand dollars page record i j devotes an entire paragraph to discussing this georgetown article and i know the court doesn't like the catch all phrase but when you add the catch all phrase after considering all this evidence in the record and then aggregate and so the twenty eight j's cornell there's another important point here that we made in our response to any a j is that there is this alternative finding and i wish i had made this point better in our brief but it hasn't even been challenged in the petition opening brief that there's still no on the part of the on government so that's an alternative finding setting aside the aggregation argument mr lopez is not challenge that acquiescence finding in any regard and if you look at the language of the agency decisions that  categorical modified categorical approach has been complicated and longwinded but the issues before this court are not so complicated and it only becomes complicated when we try to reconcile when you saw her as with mathis using  really distinct circuit split on this precise issue and so what the court house before today is an opportunity to do exactly what chief judge judge thomas recommended and his concurrence which is to take this opportunity and reconcile this issue there is a clear arrogance i will be between these two cases and these cases will continue to come before this court if we don't make a decision and i want to focus really quickly on the modified categorical approach which i did not address earlier the withholding analysis was not sufficient to satisfy the idea of obligation to aggregate all sources of torture and so what she had to do in that moment was look at every potential source of torture and see whether combined it was more likely than not