care about crimes involving moral turpitude why why continue to use it it's kind of an antiquated idea i submit to you that it is because it is a good indicator of future behavior and when you find somebody with a vicious motive and a corrupt mind nothing short of electroshock therapy is going to change that person's mind over the course of his lifetime i wouldn't go that far but if we can train it out of people yes i suppose so judge but people make mistakes when they're young and do terrible things but it doesn't mean they're going to be terrible people forever unless they go through electric fields of therapy but look but let's talk about your guy yes please because it's very you didn't represent him in the criminal case no i did not he had very very poor representation in that criminal case where the lawyer allowed him to plead guilty to an offense that then becomes something where it looks like he was a despicable person when he's not a despicable person and what you're asking us is to look behind the the actual crime of conviction and look at the reality of the situation here and should we be able to do that yes that's still win but no i'm saying that the categorical approach only applies when there's two statutes to compare there's no two statutes to compare here st of all there is no state involving moral turpitude and no federal crime involving moral turpitude i judge made it's it's common law i guess the question then is as a three judge panel how do we have the ability to credit if life to that position because it does seem the court has applied the modified categorical approach and has said that it should apply to this provision in several cases novara lopez provides us with the opening of the court went on bond and there were a number of different  opinions concurrences dissents in that case i think the court needs to take this up again and it needs to go to the supreme court honestly because well i don't believe that ever since jordan verse to george there's been a supreme court case that says yes the modern categorical analysis is appropriate for c i mts because obviously the categorical analysis did not exist at that time jordan vs to george back in fifty one i believe so i at that exact what i'm asking the court to do because you cannot example we were looking at judge previous ins opinion of our oh he even says well not all fraud offenses are the same right and he gives the example the welfare mother versus the guy who you know the frauds ar benefits they're both fraud but two very different families of it and the only way you can you know so i'm i'm having some difficulty following you say it's not fair all right well we don't judge on what we think is fair or unfair we follow the law we have to have a case so whether i think is fair or doesn't seem to me to me what part of the what i'm supposed to be doing is a judge do you have some case it says we can use that as a method of reversing your own that i individually because of experiences i've had that i think is fair person next to me perhaps says oh it's fair apply the modified categorical approach and i certainly preserve the argument that you're making that you don't agree with that but isn't that the law of the circuit as it stands today it's mostly it really is because i'm looking at the case which was one of the cases decided which was fernandez ruiz and this is one of many that says we may not look beyond the record of conviction itself to the particular facts underlying that conviction and that's a case lie upon so i guess i'd like to hear from i understand your argument that you don't think the modified categorical approach applied understand that other judges have expressed that view but i think we do need to hear from us too how under that framework you think your clients entitle to relief under the modified correct ok the problem here is we have a unclear record of conviction we have a reckless mens rea i mentioned a dozen different dozen of our times but reckless mens rea i found by the i j a in various parts of the play calling and yet as my colleague points out the and the board pointed out the placing somebody in reasonable apprehension of physical injury would seem to quote track with a two which requires an intentional act so was a reckless or was it intentional i would submit to the court of the record of simply unclear and when their record is unclear as to  agreed to was used by his defense counsel in appropriately but the the charging document speaks for itself i think you have to lose on that ground and i say that as the trial judge who was reversed by the  circuit because i found that murder was a crime of violence because here you judge the categorical approach there was some hypothetical way that you could commit murder in the state of washington through m i said thanks mr federal but that's the law and even the public defender said when i told my wife i won and how i want she said that's ridiculous but anyway we're stuck with that as the law but on the particularly serious crime analysis there we do have these friend test you factors and maybe those were not really considered appropriately by the board here and so if we don't get to go behind the record on issue we definitely have to on the p s c issue and the just utterly failed to apply all those factors thank you your honor for throwing me that softball the neither do i j nor the b i in the p s c analysis consider the fact that my client was the st victim of an assault that  his rd time he'd already been convicted twice for duis right and he wasn't even convicted this rd time when he went before the i j a and requested asylum withholding intact and so there wasn't even a rd conviction on his record they just knew that he was driving intoxicated so here we have the past conduct coming into play in the p s c analysis here i want to remind the court of who my client is ok he is somebody who was his house was shot up he was shot at his father's building was burned to the ground in iraq he could've become some you know disenfranchised dissident and joined isis know what he joined the red crescent analysis correct was dangerous at the scene of the crime not dangerous going forward and i think when when you look at the fact that this guideline range was three to five years and he was given a forty eight hour sentence there was an indication and he did well on probation that he was he's not a future danger that's correct the community and i don't know that that was considered you know if i did it in the b i is there's we're all focused on the present they're all focused on soley on the nature of the offense and consideration all the other facts and circumstances so judge walsh you have to the questions right yes what's your best case that we've decided or any federal court at the appellate case that your analysis is one that we should follow i didn't  twenty jailer flores vega good morning your honor is it may please the court attorney seventy two f we on behalf of the united states attorney general gentleman we are a nation of laws not of men and it is clear that it is circuit the application of the modified categorical approach is good law and that stems back from taylor versus united states shepherd versus united states and most recently in mathis versus united states with regard to with regard to supreme court decisions specifically pertaining to the modified categorical approach and indeed as this panel has just indicated fernando ruiz speaks on equivocally with regard to the modified categorical approach as well as a number of cases that have been cited by respondent in respondents brief to this court but let us take that even a step further there was no dispute regard to divisibility in this particular case and that the modified categorical approach would apply in this particular circumstance and as a result because we are applying the modified categorical approach as those cases render as well as the circuit court is consistently rendered we are now allowed to look at a specific certain set of documents not everything a specific certain set of documents to ascertain what in fact the defendant had been convicted of in state court or federal court for and i plead with this court is that is that is exactly what the agency did here with regard to the finding of assault in the arizona state court and that aggravated assault was committed with intent and i would also invite discourse in mention to thirteen dash one thousand two hundred and three in and of itself a b and c what is specific here is that he could not have pled to anything else he would have had an improvident pleat had there been a recklessness issue which is why the trial judge here is smart and that trial judge was very smart here in understanding the very nature here when when counsel for the defendant mentioned recklessness twice or three times if the trial judge is so smart why don't we ask the trial judge do you consider this a particularly serious crime or a crime of moral why can't we i've been a trial judge for thirty years and i can tell you people come in all different sizes and shapes and they commit all sorts of different acts and to try to categorize them all as fitting within this little framework that the modified categorical approach gives us denies the humanity of who we're dealing with here why can't we look at mohamed mostafa our as a person who might have made a mistake but give me the context of it somebody molestation or woman right in front of him punches him in the face and then he take steps to try to apprehend that person including drawing a gun that he has an absolute right to have and pointing it at the people when they are more than just the person who molested the woman and hit him but the friends too and hold them there until the police arrive why can't we think about the fact that the trial judge found no dangerous ess that the sentence was probation and forty eight hours in jail and take a look at this as a real human being i think there is there's a duality to your question here you think there's the cock the crime involving moral aspect great and then losers on that yes in a particular serious crime and that's what i'm talking so if we're now because you specifically this supreme court has said time and time again cannot look behind these documents yeah i don't think it's good but it's law it is the law  land your honor and i understand that i understand your frustration as a trial judge i will i will also and then i'll speak to the particular serious crime issue here in particularly frank test you in the friend test you factors but i think before we even get fear i think this court needs to recognize or i would invite this court to recognize what its standard of review is and it's the end of review is abuse of discretion when considering that's under code new versus united states and that cited in our brief i believe on page twenty five of our brief that says court is not inclined or may not really weigh the evidence the court is only here to make a determination of the proper factors of the proper evidence was looked at and i would like i would take a little bit of a you know just a query or an issue with regard to there was no discussion there was no inquiry into both dangerousness or the fact that he was an alleged victim here i think number one self defense was on the table which his defense counsel before the trial court said that is not a viable defense and took it off so i would ask us to take that off the table as the trial court and defense counsel did here but it is very clear on page twenty two dollars which is three hundred and two of the administrative record which is the immigration judge decision he chased after the victim because he was upset from being punched it seems clear to me that the immigration judge the agency understood that this was in response to an aggressive act and let us not remember escalated the playing field he now gave chase draws his weapon and then could then point his weapon in the direction placing individuals in the imminent apprehension of physical injury and i think really that is the factor here and that's the major concern and let and looking at isn't that what police officers do every day to arrest people they would draw their gun and they say freeze never saw the video and he claimed he was confronted i mean the evidence it indicates that he was confronted with the facts of that initially said i didn't do anything and then went caught misleading right this so called this individual this individual they were trying to portray is maybe a upstanding citizen of america where he was initially when confronted by the police authority of the authorities did he say i'm just trying to do my best i came to the fence of a woman so i didn't do anything or words to that effect but you know when he's confronted by the video he says oh i'm not now maybe i don't remember so i think we have to really be cautious and what we're trying to do here we're not trying to engage in a mini trial and this th circuit has said time and time again and i will invite th attention so they'll gado and i've been down oh that talk about friends test you and say ok did the agency rely on proper evidence and proper factors and they are the nature of the conviction the circumstances in the facts of this conviction the sentence imposed which it's clear from the record on page twenty two dollars again of the immigration judge decision that he had a relatively modest sentence that's the immigration judges to terminate that's his language that's not mine so he clearly took into account the in the dangerousness and  am going on that dangerous he the immigration judge in again on page twenty two dollars of his decision the p s i i the pre sentence investigation response were found response actions reckless and dangerous endangered the safety of others danger to the community notwithstanding the modest sentence so i guess i would invite this court's attention and understand that we are in a situation which you are looking at whether or not the agency abused its discretion handcuffed he went ahead and he was kicked by could titian or after being handcuffed again again we're in a situation which we are now we are not we are a nation of laws not of men we're not a situation where we can fit to give chase but saw fit to wield a weapon and wield a weapon in the direction of individuals i think that based upon this which i will say and i have had trouble with immigration judges decisions in the past and i recognize this court has that this immigration judge in the board affirming the immigration judges particular serious crime determination the immigration judge did a very good job in understanding for a test you factors and going through the evidence in the particular serious crime and as a result of that particular serious crime under the statute i need to await petitioners in eligible for a some relief in the forms of asylum in the form of withholding of removal and in the form of of withholding of removal under the convention against torture and the only remaining issue are application for protection not relief because convention against torture is considered protection and not relief would be deferral of removal and again before turning to that particular issue with regard to deferral of removal this court applies a substantial evidence and whether the the evidence compels a contrary conclusion and i think it's clear and i think  nothing in the record to suggest this individual would be tortured by or with the acquiescence or the call including the concept of willful blind not just blind this willful blindness by the iraqi government is simply no evidence of that whatsoever there's evidence of tribalism and general criminal strife and there's also evidence that i've cited in my record that my brief a page forty seven is that the government of iraq is actually taking steps to combat that tribalism that is specifically to the convention against torture aspect and evidence i think it's obscene that the agency's decision it's clear and substantial evidence supports the decision by the agency that he failed to qualify for deferral of remov against the convention against torture deferral and withholding of removal in the bench against torture sort of two different forms of relief a little bit complicated i know but sort of the same but different and lastly in the last remaining issue really is that is a motion to reopen it again before we get there what are we looking at for the purposes of this motion to reopen is whether or not the board abused its discretion and all the petitioner tried to do was if exactly what petitioners counsel is trying to do today paint a better picture of himself but that's not the purpose of the motion reopened what change what was different what was different and there really wasn't anything and at the end of the day your honors and i understand your honest concern with the equities present here we are a nation of laws and not of men and under the law this petition for review should be denied in its entirety and unless there are more questions from the bench i thank you very much thank your honour's thank you but i just want this we have we have students out there to if you're anywhere at least a nation of laws of course we are but the laws are applied to people men women children and to be sending somebody back to their country of origin who was working as a bike in a dental lab was you know night working at night in a smoke shop where you've been rob he he gets a legal gun you know there's human implications of these actions by the federal government that somebody should take a look at and say yes we're a nation of laws but our laws can be applied harshly to individuals and we all have some discretion and the executive branch to do the right there any particular questions from the court if not i'd like to address the last part of counsel's arguments and be the cat and mouse in the motion to reopen the torture of prominen the target of targets of retribution and not just thugs on the street the shia warlord machinery ok was backed and directly supported by iraqi members of parliament also in the record and the current prime minister of iraq as a former member of the supreme islamic iraqi council which was backed by the al but shia brigade this is in the record that last point no but that's part of kind of i didn't see that in the record no it's not in the record your honor because what we do is we have a record and if he is returned that the government will turn him or will stand aside so where the record is do i look to see that evidence you see it in the report by the army war college press regarding the shia militias are where in the record is that again that's one thousand and eleven that's where we start out with it and then not other policies are programs or parties but the government will a torture him or will stand by while he has tortured judge it shows that the iraqi shia militias and government are intertwined it's and because they are so intertwined what is the shia militias that are and the record shows that yes and how does that come what it what is in the record is it evidence is it country condition report what is it if i look at ten and eleven of the record it's country conditions report specifically published by the army war college they did a very sick with the army war  record army war college and i think those are lectures that happen i've been to those yes that's not a government record that's lectures that you hear well i'm looking for some basis upon which to base your argument and we have to find some record that the government will torture or stand by while he's been tortured what happened at the government at the war college it and i understand what's going on but i'm trying to find the record that's what we have to go by not by what i read of papers or what evidence i have in the army war college to the as a country report by our government usually through the state department i understand your honor and when the idea of torture comes up the you're very unlikely to get direct evidence ever well of course we have seen and that but that isn't the point the point is you have to show something and the we've outlined pretty well what you have to show such as being your house thank you both your arguments the altera cases submitted