also there are several issues before this court today and the petitioners position is that resolution of all of these issues requires remind to the agency either for further factual findings  legal analysis or for terminations of the removal proceedings the petitioner was initially charged with remove ability under three separate aggravated felony grounds one of those charges was withdrawn by the by d h us and the two remaining ones were that the petitioner had been convicted of burglary of a burglary a felony and of sexual abuse of a minor since you've you twenty eight chain letter raising the question of whether the federal generic attempts statute matches up to the organ statute is my right that wasn't raised in the briefs it wasn't raised in the briefs initially because i before the board but it wasn't raised in the sense that the petition to allege that the federal definition of attempts is or that sorry that the oregon definition of attempt is overpriced given that it wasn't waived it by not raising it before us i mean on a we argued before this court that the fact that the statute under which the petitioner was convicted is overbroad right you get lots of detailed argument on that and we'll get to it there's no argument in your briefs that the oregon attempt statute is somehow different than the federal generic attempts statute so my question is still the same want to ask you before have you waived that issue was decided i believe in january of this year and then you didn't raise it until just now that's correct ok so you've touched on several of the points that i wish to make about the sexual abuse of a minor stuff with regard to the first question that you asked whether if we get to the modified categorical approach you know then do we look at the record of conviction before we get there  i raise in the twenty j letter the question is whether the first question is whether the statute under which the respondent was convicted is divisible or not and the court this court the ninth circuit has essentially addressed that in requires that the act involve a person and b also involves an animal and so in that case the record of conviction was more clear than it was in the case of my client because both the charging document and the plea reference the age of the of the victim i read that case the court didn't then further divide the statute into its various subsection and abuse of a minor this and they had indicate that by itself is sufficient to be the generic federal offense well your honor i think the question is whether we get to even look at whether the conviction fell under sub section one a versus just under subsection one a and you're suggesting that you think those are means and yes and so i think that position find support both in the way that the ninth circuit approached the statute in roach alvarado where the court could have then gone further and said ok we've gotten to the point where it's divisible into one a and one b now we have to look under which  time merger cases but those those are sort of double jeopardy cases i shouldn't be talking about oregon law in a room which i'm the least expert person about it but what about the marshall case which seems to describe these elements of the well i think i'd agree that the oregon courts when they're talking about the murder cases they sometimes they use elements sometimes interchangeably with different legal  why one can't be get charged three times or punish three times for let's assume that you actually qualified for over subdivisions of c right but but the court does describe them as elements in marshall don't don't we pay attention to that well i think that it's all actually reconciled in in a recent oregon supreme court case which is and it's a case that the respondents cited in his twenty  whether or not the statutes state courts normally don't think in these terms they're not right but the quote didn't that in that case when i was analyzing whether or not a crime could be committed through different means as opposed to whether it was visible and elements and this was in this context of the burglary or oregon burglary statute the court went back and referenced a case called state b white which had dealt with  which had dealt with burglary in the in the merger context and had drawn upon legislative history to say that under the oregon anti murder statute which requires that in order for to to charges to murder or not to merge the inquiry is whether the act of violence two different statutory provisions and whether each has an element that doesn't have to be proven for the other but at this point what does that help us in determining whether the three subdivisions if you will see are elements or means well so in in that case the the supreme the oregon supreme court directly drew upon that analysis in a way to counsel that that wouldn't it seems to me help you for example sub sub subsection a requires that the person be under the age of fourteen and sub subsection b requires forcible compulsion and i forget about c but clearly those require proof of something the other does not because force you know the person could be fifteen and forced and they would be under b they could be docile and under fourteen and fall within a day so i don't see how that helps you and i actually have a question on another point which is i don't understand if we do use the categorical modified categorical approach what your position is regards the sufficiency of the documents because count three specified less than fourteen years of age and that's the only count to which he pleaded guilty we learning sexual abuse of a minor and don't have case law of a louse person eisley that connection to be drawn on that by pleading to that count were done well i'll address both of your concerns are on it so with regard to the modified categorical approach it's correct that the indictment uses or alternative term to the exclusion of all others that this as you contains a list of elements each one of which is toward a separate crime the supreme court is we should first look at the shepherd documents before we even get to to to one of the subsections of the oregon sexual abuse statute and as a as i noted in the twenty j letter that i filed this morning or in the response to to the government's twenty day letter there is a general provision within the oregon within the oregon criminal code which can be found and it's its reference in a case called sta you know and the subsection specifically is oregon statute one six three point three one five which lays out four different ways in which a defendant or sorry a victim of sexual abuse can be found to have been incapable of consent and lendu you know analyzed within the statute of the previous oregon statute of sexual abuse in the third degree and that subsection mirrored subsection one a c of the section that we're looking at today and the court said that this definition of incapacity to consent which includes being under the age of eighteen as one of the ways can show incapacity to consent that applies to all organ sex abuse crimes and so theoretically by alleging that a person was fourteen it could fall under it could mean that narrows it to one a capital a it could also mean that and there is a to one a capital c because if the victim was indeed under the age of eighteen that would be a means of showing that that person you would have to show it right because the butt of the statute as long as the person was under which was an attempt case no i don't think it was addressed and whether or not it was addressed we held that the that the other parts of the statute but i don't think they're any different with respect to attempt that there was or there was a please the court my name is edward wiggers i will represent the respondent in this matter the petitioner admitted in gauging in conduct that is sexual and in violating a statute that required the victim to be under the age of fourteen therefore his conviction constitutes a sexual abuse of a minor aggravated felony immigration judge properly terminated the grants of asylum and withholding of removal based on their grid felony conviction and on the particularly serious crime finding in the record does not compel the conclusion that is from the burglary offenses in distinct from sand of all which addressed drug illicit trafficking the aggravated felony here is sexual abuse of a minor under the definition that requires conduct that is sexual in nature and we know from baron medina that the sexual intent is what drives whether the conduct the sexual for this court observed embarrassment dana that even an innocuous touching that is innocently received by the minor victim is a crime if it is committed with a sexual intent i had a question about reliance the extent to which we ought to rely on him specifically rely on russia alvarado that was a sentencing guidelines and there  statute governing the definition there sexual abuse of a minor under the sentencing guidelines he's slightly different and we have case law that says that the two are not completely interchangeable definition for aggravated felony purposes and under those definitions it is this is a sexual abuse of minor aggravated felony because his attempted conduct which required substantial step towards in gauging in  contact with the specific intent to be doing it to gratify his own sexual desires with a child under the age of fourteen i'm not sure maybe you were answering a different question but i think we asking the same question with respect to attempt i'm still not sure why his conduct may well be a federal attempt but i'm trying to figure out whether or not the federal statute generic definition of attempt in the oregon definition of attempt or match use can you address that i have to admit your honor i haven't the right word but i don't blame you it came up we got the twenty a j on the way into court this morning but it's not an issue that was ever address by the agency understandably given when the sham occurred or by the briefs yes your own so i'm trying to guess i'm trying to get some guidance on and i know rush alvarado was an attempt case but it doesn't it doesn't express lead address this issue i think it implicitly addresses it is trying to go wherever help i can get from the government on this one yes your honor my initial reaction is that petitioner was not charged under subsection you he was charged under subsection a which is the sexual abuse of a minor provision and the definition of sexual abuse of a minor covers any conduct that is sexual in nature right now i understand that's what that's why i was having some difficulty with your answer judge graber i understand your argument by w statute is a categorical or is a modified categorical match if you will i never know what what language to use in describing these i'm going back to the attempt issue yes your honor because he was only convicted of attempt yes  you agree that if the federal definition of attempt were now lower than the oregon definition of attempt then we'd have a problem here not in this specific case your honor but see that's what we can't do under the modified categor can't look at the facts of the case we have to see with the if if the two statutes don't don't match up then we've got a problem don't ordinarily that is true your honor i'm not talking about the facts of this case i'm talking about the law this case we're talking about conduct that is sexual that can be the actual sexual contact that can be the substantial step towards that sexual contact with the sexual intent so what you're saying we don't look at oregon's attempt we just look at the federal generic offense or the or whatever oregon's attempts at you is since a sexual abuse of a minor matches up with the federal death sexual abuse of a interview yes your honor because the because this specific definition of sexual abuse of a minor covers conduct that is sexual i submit that even then attempt under oregon law meets that sexual abuse of a minor definition without subsection you so you're saying we look if this is always so confusing in this area but attempted sexual abuse or attempted sexual abuse in this context with a sex with a child own good didn't that's helpful so let me just ask and see if i understand it so you know your position is that every attempted sexual abuse of a minor are no oregon law constitutes once we apply the modified categorical approach constitutes a a highway sion of the federal generic statute every first degree attempt yes your honor if it's first and specifically first degree so the sub sub a if it is the one that it has the age fourteen cap right now let's assume that we've decided this is the statutes divisible yes my question is so every attempt to violate that subdivision of the statute in your view is a federal generic crime without regard to whether or not it would have been an attempt under federal law yes your honor because it they all involve conduct that is sexual in a minor under fourteen and it's the state from the straw as i know that why would that necessarily be true i  and you know talking to them why would that that could be a substantial step toward first degree sexual abuse but it wouldn't necessarily be conduct that is sexual in nature i would submit that it would be your honor with if it has the sexual intent and we know from the d n a i believe it's barren medina that it's not even necessary for the defendant to have engaged in physical contact with the victim to sustain the sexual abuse of a minor if they get no i am perfectly willing to say that my scenario constitutes an attempt i guess what i'm having difficulty with is your statement that no matter what the substantial step it is it turns out to count as sexual in nature that's why that's where i'm hung up about it not that it would be insufficient and it doesn't have to involve touching and that's necessary that the individual touch the victim they can talk the child into touching themselves and that substantiates offense as long and we know that in an innocent touching and an innocuous touching excuse me that's innocently received where there would not be any crime but for the individuals i know that but i'm positing an attempt that doesn't involve any sexual contact but still counts as an attempt it involves sexual conduct if it's done with the sexual  me give you a scenario to see if i can he can help me with this let's assume under oregon law it would be enough if i said to judge graber i intend to do something tonight and what i intended to do would meet the statutory definition of sexual abuse if that were true the if that attempt now were enough with that match up to the federal crime that were sufficient to establish a substantial step your honor yes now it was sufficient to meet the oregon definition of attempt the oregon definition of attempt is expansive and so once i talk to her about it and maybe one other step get in my car but i decide on the way i'm not going to do it if that were enough to meet the oregon these hypotheticals in the supreme court has told us to look at actual cases not i'm not aware of any of these things i'm not aware of any and what is what would be the typical attempt here the individual entered into the house and  touched and attempted to do things i mean is that the typical thing is are there outliers where just talking to a friend and saying you have an intent are enough has to has the oregon courts and that's enough for an  attempt the one case that i know that would be more or less on the attempt issue what the scope of an attempt is the aragorn case that we cited in our twenty eight j it involved a conviction for attempted first degree sexual abuse a because the defendants in that case were trying to arrange sexual partners for their children who were under the age of fourteen and they had approached a neighbor about their the neighbor's underage daughter and an undercover law enforcement officer about a hypothetical child i believe and those were enough to sustain sustained attempted sexual abuse of a minor so you have to warrant no no touching no locking in a room where was just conversation basically yes your honor it was their efforts it was their efforts to gratify their sexual desires by having their children have sex they took they took a step in that in that direction so that gives some illustration of the parameters of attempted first degree sexual abuse and i would submit that that is sexual conduct if they're out there actively trying to recruit sexual partners for their underage children we know the age requirement is an element because there's a defense to it and i disagree with the assertion that the that the defense does not narrow the element to subs of a age requirement because if the defense came up in that specifically with petitioners response regarding they are going case because they are going case was a sub sub a where the question was whether the defense was available and it was not available because the defendants in that case were adults and the actor had to be within three years of the age of the victim so  that there is a defense to the age provision so the age provision is necessarily an element as far as further it in the condition that it's an element we have the fact that there is a greater sentence for first degree sexual abuse which requires age fourteen the corollary for third degree sexual abuse requires age eighteen i think that doesn't help us though with respect to the three subdivisions not to these three subdivisions here but it does show that oregon views the age as an essential aspect to establish what level of punishment is appropriate as far as the three subdivisions here we know from the perk led to six charges for three specific instances of sexual conduct contact and the organ supreme court said that these are separate elements but these crimes had to merge because this is the same statutory provision so that's why i don't find the particularly helpful because it just means you can't punish somebody twice for the same victim even know it involves a and b yes you're on and getting back to your honor's question about whether the federal attempt is overbroad i met again i haven't had the opportunity to do this by the way on a number of occasions we we felt that the arizona one is a categorical match i don't know whether we dealt with the oregon one or not this is popped up with us minutes so i didn't i wouldn't expect you to be prepared i submit since the organ attempts that you require does require a substantial step with the specific intent to commit the crime that would be the federal definition that's what we feel with respect to the arizona one i did because i know i know that those ones but i don't know we have addressed organ do you know do you have any case we've ever addressed or no your honor i'm not aware of any and unless the court has any further questions that will conclude our presentation we submit that the position of you should be denied our don't believe that we do thank you thank you  within the context of a sex crime can that be enough to be attempt under oregon law on the answer's yes the other point that i wanted to make in terms of the difference between  alvarado analyzing sexual abuse in the sentencing context both we're dealing here with a very specific california our ninth circuit definition of sexual abuse of a minor where by virtue of the person i would just urge the court to do is regardless of the outcome of this issue of whether or not my client has been convicted of an aggravated felony there is still the issue of the torture convention case and the agencies and particularly the board's analysis of that was so lacking that under colby holder and and similar cases the case has to go back to the agency for at least an explanation of why or what the factors were on which the the torture convention case was dismissed thank you can thank you very much the case just argued is submitted and we appreciate