could be prosecuted under this statute would cover a conduct that is broader than that kind of covered under the chair generic definition of a crime involving moral turpitude the basis for petitioners argument is that this court in new set forth a test for non fraudulent for determining when non fraudulent crimes would be considered a crime involving multiple categorically and there was a three part standard that the court looked that in court as medina act which the we we think the ninth circuit was languages to near right the board of  because as the agency's interpretation and construction of a statute is not reason enough to be permissible and the reason why the that is making an argument is that the court has medinah decision basically held that a defendant who was convicted of under a under a indecent exposure statute would have to hold a lewd intent and  that the defense would have to have would have to include intent or one zones sexual desires now the statute that issue in the us case and in the court has madonna case have to be convicted as extend in also to the intent to arouse the sexual gratification of a viewer or offend in the viewer in a sexual way so that the nearest who exposed his penis in a road rage incident that driver didn't have article he didn't have any intent who were up for his own sexual desire to arouse own sexual desires his intent would have been to offend the other party there was an example provided of a twelve year old who poured down his pants to expose himself to other classmates those are examples provided  situations where somebody could be convicted under the california statute but it would go beyond the definition of the lewd intent that was understood in the quickest medinat case to the situation at hand and that's because the court has basically disregards the whole in a new news on th every court that's reviewed the issue but where the were aboard ared is in terms of its understanding of california law and that their interpretation gets us for the purposes of the washing statute is that the washing statute is similar to the california statute that this court found to not watch and if i remember correctly the washington statute doesn't have the word i does it does not and that is something that would work in the petitioners favor but the washington least we're dealing with with as i entered the records a little there's some confusion in the record but as i understand it the  provision under the washington statute that he was convicted under was the in the the gross misdemeanor because it happened in front of a person under fourteen years of age correct that's correct so that's a little bit different in the california statu not in terms of the substance for what he had to be used of committed the washing statute does if someone is convicted under the part of washing saturated that where someone's accused of exposing him or himself or herself to a party under fourteen years of age the conduct isn't any different that just relates to the age of the alleged victim so the same combat that the washing session in this fashion somebody who has been convicted twice of and decent exposure would be subject to a felony conviction under d and then to do in washington indecent exposure statute so somebody who who has decently expose himself or herself to two parties who are over it let's say two victims on separate occasions who are over eighteen years of age that person would be subject to a greater sanction and somebody who just exposed himself or herself one time to somebody who's under fourteen years of age so it's not clear that the person that that somebody who is under fourteen years of age is necessarily a protected party in this case because what do to me the difference between a gross misdemeanor in a regular misdemeanor and washington state is that a defendant convicted of the former is subject to greater sanctions the person who a person is convicted under the former is subject to a maximum sentence of a year in jail while someone who's convicted of the latter is subject to a maximum of ninety days in jail a regular mr a regular a simple misdemeanor the current system yes yes but somebody who is convicted fourteen years of age are protected or protected class in this case or as applied to this as applies in this statute because as position noted in in his brief somebody who has been convicted two times  exposure to two parties over fourteen your records of age of the party is is subject to a greater sanction overall of the pictures contending that there is a realistic possibility that somebody could be convicted under a washington state statute for which he was convicted for conduct that does not involve moral turpitude and we think that the examples that were that this motion not because i couldn't quite figure it out it was an it was not obvious to me when i read those two cases where the petitioner doesn't oppose the motion remain i don't want to speak for the respondent but i do think valdivia floor as one of the cases that the government cited in its motion would require to conduct an analysis there whether the indecent exposure that you're talking about in this case was created with the intention of protecting minors i think that was one of the key findings from  hear from mr lawrence for the going to thank your honor may please the court victor lawrence on behalf of the attorney general this court asked whether or not how do you know plays into this particular case and we would say that when the court decided in niger could cite an innocent two thousand and ten it indicated that it was important for the board to clarify when criminal conduct involving indecent exposure is probably classified as a crime involving moral turpitude so in two thousand and thirteen when the board had the case in cortez medina it did exactly that it looked at the crime looked at what is the a crime involving moral  you know this is an ambiguous term but the board using an immigration expertise had the ability to interpret that and provide a presidential decision which we agree or we believe this court should defer to so the first thing they did in court has medina's the board said what is a crime involving moral turpitude it basically has two essential elements of culpable mental state and reprehensible conduct but then it looked at its wealth of e and they came up with two essential elements of the statute must have and that some with respect indecent exposure they have to have an obscene exposure of their person and they have to have lewd int so the next thing that the board did and that's the important takeaway from cortez medina that there are two essential elements of the statute must have in order to find a conviction that is categorically a crime involving moral turpitude indecent exposure and leave intent from the california statute is that right the california tent doesn't say lewd intent lewdly but they're talking about the lewd exposure right but that i mean that that seems to have been where that where the board derive the term no i don't think so your honor i think the board in court has looked at all the various times where there was action for a crime involving moral turpitude involving the decent exposure and determined that the common factor was that there had to be limas case looked at it so if you if you start with the accepting the fact that in court as medina these are two essential elements they found lewd intent and indecent exposure then you go to the seattle excuse me the washington statute and you see whether or not that statute has those two elements if so then categorically anybody convicted under that statute has committed a crime involving moral turpitude and when you look at the washington statute it says that a person who is guilty of indecent exposure he makes an opening axion obscene exposure of his person knowing that such conduct knowing that that obscene exposure is likely to cause reasonable front or a long term and the board in mr perera limas case reasonably determined that in that that statute requires lewd intent so therefore anybody convicted under this board should clarify what it what are the essential elements of indecent exposure with respect to it being a crime involving moral turpitude so that's exactly what the board there were pretty clear about if it's sexual you know the way the way with with respect to the california statute we pretty much said as i understand news that sexual affront or sexual the other elements of it can't be a basis never have a sexual intent to when you commit that crime i don't think we're saying that at all but more importantly what nunez was doing this is i think the thrust of the government's argument about why you should have a court chevron deference to the board's decision is the court in newness specifically put in front of the board and said please please we need clarification on this we need clarification on what is what is the cia and t with respect to indecent exposure so that's what the what the court what the board did when its own case law and tried to come up with categories separate came up with these categories of attempt to injure actual injury and a protected class the board took a different approach and said let's look at let's look at the generic law generally of what is a who was under the age of fourteen and that's you know the louse well you know in response to judge pass questions about that yes you could you could argue under nunez that that is a protected class but we're actually taking a different argument we're arguing on the basis of medina which we think this court should a court section front deference to that it if you look at this washington statute you find intent you find obscene exposure and when you look at the statute as a whole what possible crime could there be that where somebody is convicted of this exposing themselves in front of a fourteen year old responsibility to show that there's a reasonable probability not just a theoretical possibility but a reasonable probability that somebody in the state of washington would be convicted under this statute that would not have those elements of lewd intent and obscene exposure and the government maintains that he hasn't met his burden in showing any case in the state of washington where there hasn't been those elements present and the government maintains that given the fact that this convicted of the second part of statute of somebody exposing himself in front of somebody who is under fourteen that there's no possible way and that's not necessarily a burden but there's no possible way that somebody would be convicted under the statute that didn't have this essential element of lewd intent and obscene exposure mr lawrence let me ask you this how do you answer mr chan's argument that someone might expose themselves the california court was look at the ninth circuit was looking at the wealth of cases in california where people were convicted on their debt statute or people were prosecuted under so that statute and they finally found that there were these couple  of the road rage incident that you knew dancing incident where those were not cases that necessarily involved lewd intent but the difference your honour's were operating of course looking at the washington statute and the case law that's developed in the state of washington pursuant to vera's it's petitioners responsibility or burden to show that there's a reason oprah reasonable probability that somebody will be convicted of one of those crimes a type of crime that you just mentioned that that they'll be convicted of that in this state but he hasn't shown a single case of anybody that's been prosecuted even prosecuted let alone convicted of of the crime of indecent exposure for this type of road rage incident or the prank incident or new dancing so those instances came out of california state law that the ninth circuit used as examples in supporting their opinion and nunez but here we're looking at a washington statute in the state of convicted under this indecent exposure statute particularly one where that where it is a washington statute require an actual observation washington and that that did not require necessarily sexual motivation involved somebody who was you know going around neighborhoods naked and exposing his genitalia but but there's still enough in that opinion to to develop the intent that to develop the understanding that he was doing that with lewd intent and there's discussion in the vars opinion about the serious behavior so the overall point that the government you know is resting on here is that there's no the petition hasn't shown any reasonable probability that there's somebody could be convicted under this statute but there's not even an example of a case in the state of washington where somebody has been convicted of the statute that you could indicate that any crime in the state of washington also you have to look at the complex liability factor because somebody could be convicted of an as an accomplice under any particular crime in the state of washington and i was looking at the generic definition of accomplice as compared to the state definition of accomplice and it said that the the state definition was broader and because it only required knowledge rez the federal generic definition required specific intent so the idea was that because it was broader that arguably any crime in the state of washington would be tough to to say categorically a crime in that case was an aggravated felony that's whether statutes divisible but here the only reason why we raise about valdivia and suggested this remain which you know if the court were to decide this on the merits and say look this is obviously a categorical crime involving moral turpitude because nobody can be convicted under the statute without having done something morally turpitude this the government would be pleased with that decision and would think it's correct we suggested the possibility that if this court is looking at this from the standpoint of and the compas liability statute that rather than make a decision on the first in the first instance on whether or not valdivia has an impact on this particular case it should send it back to the board to do so so that's the reason why we filed the remain and also the matter of him in this case we just suggested that there's another way to look at this no other approach that the board could take and that goes more to the protected class of victims that we discussed earlier so we filed we filed the remaining motion suggesting that if the court is looking at this from that standpoint like as it did in the valdivia then then it should send it to the board to look at this in the first instance but there are several distinguishing factors so there so we think it's certainly within reason that the court can include conclude that bell david doesn't apply and look at the statute itself and say look there's no possible crime petitioner has not shown a reasonable probability that there's any convictions in or crimes that are being prosecuted the state of washington that be involved behavior that does not involve lewd intent and obscene exposure and determine that indeed this is a categorical crime involving moral turpitude and denied a petition for review we think that's a reasonable result and that's what we would ask the court to do if it doesn't rain man down the chute ok thank you very much thank you very much case and the reason is that the board defined lewd intent in this case include an obscene and in pretty much as applied to all indecent acts however the definition that further i must think counsel lawrence for traveling all the way from washington d c to give us the benefit of his knowledge and i'm also going to thank mr chant for traveling all the way which which is now so we will submit this case and we will adjourn for a ten minute recess afterwards we have two cases to be argued elli