that this person a sexual abuse of a minor if someone has sex with someone with a female who is under the age of eighteen well that's clearly not true because such conduct is is permitted in almost every state under certain circumstances and as i mentioned in my brief that in thirty six out of fifty states it's it's it's perfectly legal to have sex with someone who's under the age of eighteen for example in hawaii  that is part of this court's jurisdiction it is perfectly legal for a twenty one year all man to have sex with a girl who is sixteen or seventeen however the same conduct if done in california will subject someone to permanent banishment from the united states meaning permanent banishment i don't believe the congress intended such inequity in the administration of immigration laws i believe that the purpose of immigration laws is that there are counsel counsel help me on the inequities part and the national uniformity part used to be things that were seriously criminal that you would really get arrested for and go to jail for and all the rest of the country there were some that you could do in nevada and don't speak badly for the rest of the country doesn't speak badly for nevada it just speaks well for federalism if you as opposed to the moral turpitude being in the nature of the felony that you choose to correct your honor because of the inherent unfairness of this law what we're talking about is a permanent banishment off a long time permanent resident of this country what we're talking about is that apartment a person who commits an act that would permanently banish him from this country i don't believe that the purpose congress interacted the sexual abuse of the minor definition excuse me sexual abuse of a minor aggravated felony charge was that the law would be applied so differently there has to be uniformity because in the absence of uniformity it's going to produce absurd results meaning that those states that choose to punish or excuse me those states where that have a majority as as under the age of eighteen the people in those states will be subject to much harsher immigration consequences w why is it unjust results to have these variations there are a lot of differences in what states require and and prohibit according to local conditions your honor i like and i ask a requires bush pilots to carry probably it's prohibited in most places your honor in this case the court here has already rejected the same cite the same sort of arguments and aggravated felony drug cases where  various terrorist this court said that it would it would make no sense to punish certain people more harshly for drug offenses just because a stooge chooses to punish them more harshly and should be interpreted in such a manner as to avoid absurd results in real life in this case that we're i'll give you an example for example a couple in hawaii a twenty one year old man and a seventeen year old girl in hawaii who who with the permission of their parents are living in hawaii and who travel to california can be punished the twenty one year old man and the one who did not break any state line hawaii would be punished in california for violating statutory rape laws so your hon or i don't believe that it's going to produce the kind of results that congress intended in protecting minors from sexual abuse that's one of the purpose is to protect minors from sexual predators and i don't believe that the congressional purpose will be well served with this kind of this kind of a law and your honor uniformity is one of the most fundamental elements of immigration laws i just court  in such a way that there is no inequities in its application that it's applied uniformly throughout the throughout the country and this court has recently also said that  the petitioner violated it's not a crime of violence in valencia case because it's not a crime of violence because the government offered absolutely no evidence or offered any studies that shows that for someone to have sex with a female under the age of eighteen would cause or harm or injury or there's any studies that shows that it causes irreparable damage to the female so your honor i believe that this uniformity argument as a political two aggravated felony offenses for sexual abuse of a minor is overly broad as as used by the board i believe that the board's application of this law is it's good to be back before the court comes you know for a while and then again i'm really molina for the government in this case the court has to deal with two sixty one point five c of the california penal code this is an offense of sexual intercourse with a person under the age of eighteen now this is now a much more interesting question in light of the court's recent lopez so his decision but the government's p this remains a case governed by the decision in afridi where the court in indicated that the board of immigration appeals is entitled to deference in the interpretation of sexual abuse of a minor should be emphasized this court explain in its qataris first sash proxies in discussing uniformity why particular deference is owed to the board of immigration appeals in this type of a context it precisely because of the need for acts not amounting to sexual intercourse and the court there said the conduct there is not necessarily abusive because there's not necessarily risk of an injury to the person either physically or psychologically as a result to present this court has always said that sex with underage persons is ok but i mean i understand what you're talking applying the statute but we've got here you have a married couple you know they're now married what's happening what has happened is that the state of california has made a judgment building into the statute an exception for married couples that if you were going to engage in sexual in actual sexual intercourse with a child under the age of becomes problematic all stand for the proposition this cannot that under the terms of the generic understanding of the meat of the on of the common meaning of sexual abuse of a minor sexual intercourse well i think we all follow the logic that it's a minor and it's sex and if the statute says it's abuse it's abuse however we also all live in the world and we know plenty of sixteen and seventeen year old girls are sexually active by their own choice and it's often called victorian and i don't think it's actually good histories but it's often called victorian to girl that age especially yeah in a situation like this but even without a situation like this it's not necessarily abusive and we also have a formalistic analysis from the logic of the statute that it is so we have in can somewhat inconsistent or at least strained distinctions any opinions because of the tension between what we know about the world and a logical analysis of the statutes and i think we're all still the statutes prohibited all kinds of sexual conduct for maybe fifty years after nobody thought there was really anything the matter with it every now and then some prosecutor prosecute somebody for fornication or something of that nature and they gets national headlines because it's so contrary to public maurice exactly your honor but you know something the courts keep in mind in this case and actually let me answer your question before i get to that point is yes there is always a tension between you know when the society reached the threshold of what is abusive to a minor and perhaps some states wanted want to go one way perhaps certain states want to go out of the way we see congress defining it eighteen u s c thirty five zero nine as a minor involving this type of behavior for someone under the age of eighteen it becomes very difficult to address all of that but because of those difficulties bearing in mind the intent of congress almost without variation minor when some is referred to as a minor as this court has explained means somebody not of the age of majority somebody not possessed of all the legal rights that the society has to offer that somebody under the age of eighteen so the case that was a twenty one what that was twenty one when i started practice except in alaska were as night yes your honor and that that was sex with a twenty year old that may change over go on there the court to find sexual abuse as looking of black's law illegal sexual acts performed against a minor by a parent guardian relative or appoints this case falls under that in all respects it looks to webster's misuse also to use or to treat as to injure her or damage to commit indecent assault on the act of violating sexually and rape or inducing salt amounting to rape this is clearly as california has defined it the misuse of a minor this is not an appropriate use which is what misused means so the court should look to the plain terms and that's all the government is suggesting congress in not limiting this to a intent they wanted to remove aliens who decide to violate laws the united states that amounts to sexual abuse of a minor on the common ordinary terms of that definition do we have do we have the ability to look at the look at the facts of this case and the categorical approach and the modified categorical approach to the determine whether or not and this involves this used to use or treat so as to injure her or damage to commit indecent assault thank you or are you brought me to something i forgot the point i was going to get to with just trying to put in get back to let's look at what this gentleman was convicted of he's convicted of unlawful sexual intercourse with a person under eighteen on a twenty six to sixty one point five c he's convicted of sodomy of a minor which is the find as sexual conduct consisting of contact between the penis of one person in us of another person he was convicted of oral copulation which is the fine is the act of copulating the mouth of one person to the sexual organs of another person and or pornography is fine as any substance instrument for an object or or device one of those falls under the definition of misusing a minor are falling under the general definition or there's still all the other problems that california has laid out and those are not limited to concerns about pregnancy those are concerns about the appropriate use of minors what conduct is appropriate when one is dealing with somebody under the age of eighteen california has spoken if falls on of the general definition of sexual abuse of a minor therefore in this case the court has multiple reasons i don't i'm sorry i guess since we're all wearing black  we're all supposed to be really shocked by that catalogue of sexual acts from alaska i mean where she asks him let's do that is the word he used means i do this to you and you don't want me to do this so you know i'm doing it for my own gratification she asked in a do that mean does that actually the supreme court has looked at that and in the words you use and why a cow and just means to intentionally look at put into use for yourself and so yes if you use the minor that way california says that's not an appropriate use therefore  they are purely in their nature concerns about how people under seventeen are to be treated and they're not to be treated in any of those ways now i see that i'm well out of time but i'm here for the court of the court per se sexual abuse of a minor if the girl is under the age of eighteen and you know all the acts that the government just described are perfectly legal in almost all states in fact they are illegal in