the wording of this statute the most important thing is that the statue has an attempt in the word of attempt in this statute which automatically pulls it out of the cia mt as it's written in the statute most criminal statutes that have an attempted element it would be a completely different section of the same statute but here the word attempt is written directly in to the wording of the allegations that the prosecution or the convicted the conviction held  the attempt statute here is there he doesn't even have to have an act according to that statue it just needs to be attempted show if you are planning on doing something that is not sufficient according leaves it very vague and ambiguous as to whether the mr pierre ever acted in any way to commit a battery on a child the i mean generally  doesn't doesn't thomas freestate say that you have to have a specific intent to commit a crime the crime and and over and act yes and here there is there is no over according to this the way the statute is written with the word attempt there is no overt act if you just attempt to do something but in that case they were construing the statute one thing yes they were but when we construe statute here it is the the petitioner was convicted of not attempting to do something a separate act or a separate statute in this case the the word attempt is actually in the plain meaning of the statute which takes it outside of that over action needed even know it is no knowingly cause or attempt to cause but there is no overt action when you attempt to cause something and further that contact that is necessary for this statute is not contact that uses deadly weapon or serious injury which traditionally the courts have found to be a c i m t v give me an example of attempt to cause where there would to go do this act but if i never do it then i never attempted it which is which is kind of what the argument is that an attempt to do something shouldn't be held as a c mt when there was never anything done and that's and and including the fact that there are the statute doesn't even have when you  never having anything done you mean because the child never came in contact with anything the child you just attempted to have the child come in contact with correct and their attempt was unsuccessful correct or that could be one example whether the attempt was unsuccessful then that something else but if you never even if he the attempt was not to such was fine but the point is that nothing according to this statue him just attempting is a battery which is not the way that battery has traditionally been defined which is touching against one's will and here there doesn't even have to be that contact and that contact can be so slight or there should there is never that contact and the cia empty traditionally college especially when it's with a child which we understand is somebody that society tends to protect usually there is the element of serious injury or deadly weapon and this is not none of these none of those two elements are classified or outlined in the statu the underlining record shows that the attorney never actually filed asylum as a defense to remove ability or so therefore he never actually apply for it again but he adjusted as an we through his father so that goes to the arguments that were made as to the motion to continue argument to at that point final an asylum application if he is taken out if he is no longer a green card holder so it he has he suffered prejudice in the attempt in that when the government filed on april third view at the motion to pre term it and the hearing was on may fourth at that point the judge had given everybody a call up day and counsel underlying coun final forty two a application which was pre term it but he but at some point he probably should have filed the asylum and that's that's the third argument in our brief that he should have  that we should have been respondent should have been given the opportunity because of the prejudice against him that suffered by the late filing on th us is a court so tell me where he where what would happened  he plays for asylum correct and then how does that affect the proceeding that he's in so he could have a file he could have applied for asylum withholding or or cat so at that point he would have been able to present evidence as to a an asylum application and had a complete hearing on the asylum application that he was a derivative from on behalf of his father ok so the derivative of asylum puts him in a different position than getting asylum on his own well no it just shows that he has he could possibly have a claim for asylum on his own that's all it shows it doesn't put him in a different position it just shows that he can and he should of had they been aware of the de ate his memo to preacher mitt that was which is where he was never even put on notice that this statute that they were going to pursue this as a cia empty because he's not charged with the cia empty in the n t a the only thing that he's charged with is what that what the district judge the i j a have done on he would've it depends on the judge the judge and its judgement tayo so he could have had a full immigration is a full blown hearing and at that point made a decision whether was a cia empty or not but the cia mt issue was never even brought up until the until the motion to preterm it because it was only proceedings that's that's correct it did settle when they fall into a they started the whole thing he had grounds for asylum correct than ok and he never filed it but the there even in a time and even after the ruling here you never filed one that's correct but the the the opportunity was it while it was presented him to him time right on in particular here this there was no new development of facts if the asylum claim was there was there before what would his asylum claim have been it was it would have probably based on family particular social group of the father in haiti and haiti correct and he would have fear of returning but he was already a great card because of what a social group for the father was what and what's going to happen well the particular social group of the father i've never actually seen the father's asylum application it would probably be as a family member of the father so the asylum claim would have been derivative it would have been a particular social it what he would have been it would have been derivative because it would be his own asylum claiming that because he was the family of but at this point we're speculating because he never filed it but that would have been as they are proffered what the saddam claims going to be at any time here not at the rock not on the record right but it was indicated that the father did gain asylum in haiti and that's how he was brought to which prescribes knowingly throwing expelling projecting or tossing blood urine feces or seminal fluid at a child there are three disputed issues in this case are attempting to cause if the attempt is actually attempting to cause the child to come in contact but the overt act is by throwing projecting expelling tossing so the defendant must actually direct these fluids these bodily fluids at the child and then but and they must do so with at least the intent of having the child come and come into contact with those substances but the attempt part is if what was the notice to mr pierre for the hearing what to tell him was going to happen at the hearing anything specific the original notice to appear or to well in the original notice at all together what information did he have from whatever notices he was given before the hearing ok so he originally in july of two thousand and twelve was given a notice to appear and he was informed of the charges against him and what did they was given there were multiple continuances of this case while he was represented by counsel on august seventh two thousand and twelve august fourteenth two thousand and twelve september thirteenth two thousand and twelve and then finally on april twenty fift thousand and thirteen that was the case that was probably the most relevant to the disc to our discussion here on that date his attorneys stated that they were planning on filing cancellation of removal and likely an asylum application the immigration judge asked how much time would be necessary for them to compose those applications and file them and petitioners attorney at that time said that he would need about a month the immigration judge informed petitioner that he didn't have a hearing date that close in time so he actually started out a year and stated you have a you're on your case and again he confirmed with the petitioners council he stated all applications including an asylum application would be due on the same date petitioners council at that point agreed and so then when they reconvened a year later petitioner had only filed his cancellation of removal application had not filed an asylum application i also think it's important to mention that petitioner didn't walk into court and say i have this evidence that i need to file in order to support my application he actually waited until the end of the immigration judge had already preterm it it has cancellation of removal affleck ation order him removed and then he said i didn't think i needed to file a backup application and then he asked to go to for a continuance in order to do so  immigration judge is not required to go through in an applicant's separate applications in separate hearings it's part of the regulations are that the immigration judge allowed to set deadlines and and generally a petitioner isn't titles who one merits hearing on all of those applications immigration does at that time preclude him from taking any other actions on  legal argument that he wants to present regarding the crime involving moral turpitude argument every also in their filed for asylum or or does the immigration judge's order cut them off if he is he would have to a stab wish a reason for instance he could have filed a motion to reopen alleging ineffective assistance of counsel first for instance stating that that the reason why his application is being filed late and he needs this proceedings opened just because he received ineffective assistance so he certainly could have done not at that point through the motion to reopen i don't know what the circumstances of his case where he could have asylum given any special status it doesn't for a couple reasons first so position at this point it would only be eligible for withholding of remove or caprica action based on a disqualifying conviction the as a derivative which means that means that he never established that he faced a personal risk so if he if he had had established previously that that he himself w going to actually face persecution then perhaps his case might have been a little stronger but here all we know is that his father established that he had a well founded fear and so he was able to bring his minor children in as derivative so we don't know if the petition i don't this is actually a statute that is not yours that it's not reach him find anything on the statute or that was pretty much the only the only cases that we were able to to find were cases where where you can discuss an intent the other thing that i want to mention is is that that even if all this person was doing was attempting it's still constitutes both maltreatment of a child and reprehensible conduct if you can compare this case to say jelen and versus u s attorney general that is the case that deals with elder abuse or abuse of this encouragement of another person to commit an act that either results in jury or could reasonably result in injury to an elderly person or a disabled person  without causing serious bodily injury and and the way that the court had defined defined the injury that could possibly be called cause includes psychological injury and this court has  found that that elder abuse statute was a categorical crime involving moral turpitude because you have this act which is morally reprehensible and it's and it's being perpetrated upon a group of people that is particularly vulnerable in society that being the elderly or or disabled adults if you care that if you compare that to this case we have an even stronger act because it's the defendant himself throwing expelling tossing these substances a child rather than just encouraging another person x what is your best case under florida law that attempt always requires an overt act to stanch writing the statue as the attempt within the terms of the statue as opposed to separate statute that says attempt to do any particular act was also a crime right i got her point on that but look within the statute just intent general land of florida more questions on this topic perhaps i'll back up a little bit and just make sure that i address the three main issues here the first being that position has conviction does constitute a categorical crime of child abuse neglect or aban and this court has not in a published decision officially deferred to the board's definition of that of that term but this court has afforded chevron deference to the board's interpretation of the term in  intentional with knowledge recklessness or criminal negligence act or omission that constitutes maltreatment of a child or that impairs a child's physical or mental wellbeing including sexual exploitation or sexual abuse and in finding that definition the board synthesised many different criminal statutes available the at the time including seven different federal statutes that defined the defined the term child abuse  and and synthesize that with what the general understanding of the term was at the time that congress enacted the the i n a and so that's how they determined this broad definition and all of the and the board further refined shoot that that there that there that the harm was likely to to arise from the defendant's actions now here we have a case where the can the statute of conviction matches those elements first it has added wittman's raya the bodily fluids at a child and missed or hit him either way this is going to cause a mental injury to a child who instinctively will know that an adult throwing feces at him is is doing something that is that is contrary to the accepted morals in our society and finally involves the child victim the statute requires that the victim always be under age eighteen and that the defendant always be over eighteen and moving quickly to the and some degree of scienter now here the scienter is knowing that that qualification has been met and second as i stated all of the conduct that is possible on your here whether it's an attempt to cause a child to actually come into contact with these substances that the that this person directed at them or whether whether they actually did did make contact it's going to be vile base and deprived conduct now while there's been a comparison to assault battery statutes we're ignoring the very clear aggravating factors that bring this above an assault or battery sac shoot the first and most important being that the victim is always going to be a child and congress has specifically stated that children are more deserving of the protection and and it an assault on a child is more likely to be a crime involving moral turpitude that can in a simple battery you you have an unwanted touching there's a difference between a touch with a hand and and having a you know a bodily fluid essentially weaponized and thrown or projected that you this court  found that in and young versus a u s attorney general that this exact statute involves violent force enough to trigger a sentence spent so we do have some sort of force behind that touch it's not just an unwanted touch and i do see that my time is running out so i would just conclude by asking that this court deny the petition for review thank you thank you attempt to cause contact occur is that not a legitimate reading of the statute well it's not because again we're the attempt to cause a child to come into contact there doesn't even need to be to do the by tossing sewing saw tempting he could be the cause contact or attempt to cause cut a father want to say and that's how she reads the statute that you have to have a statute because we all the time we say let's go out and toss the ball and we're not going to hit ourselves with ball we're talking the ball which is something that is nonviolent count council focus on the attempt what i hear the government saying is that the throwing tossing projecting or expelling is the overt act and that the attempt is you have to have thrown tossed project or expelled in order to be convicted just from the face of the statute that's what i heard the argument is can you respond to that and my response is that when this statue the plain reading of the statute has attempt to cause a child to come into contact it doesn't have that i agree that the action that the spawn it would need to take is throw tosser project but that's not what the the word attempt is qualifying that's the argument that we're making that the only attempt to the temp is controlling actually contact and the contact is not described as contact that is violent or causes injury while we agree with opposing counsel traditionally the statute have held that a person such as children or domestic partners can have a high in standard but this statute we've know does not define anything such as a deadly weapon or any injury just as counsel argument i'm sorry arguing that you have to attempt to throw not that you actually have to throw i am arguing that the there the statute doesn't there doesn't need to be contact and once the statute requires that no contact needs to happen then you don't have an injury that could cause harm you don't have an injury and you don't have an action that could be an attempt that could eventually lead to injury also as in counselor stated in jelen once you don't have that contact there is nothing there is no violation of that there's no  empty because there is no qualification of that contact and traditionally while children are to be protected there the statutes always call for a deadly weapon or in or serious injury on the child all the cases cited in the brief by counsel do differentiate this statute garcia was of a child a sexual abuse case so show was a case that required permanent disability permanent disfigurement or i don't think any of those cases cite this statute they don't but they just analyze another statute right correct and that's why the other cases some of them were found to be he i am t's because of that qualification of the contact here we just have contact or an attempted an adult child but as long as it doesn't have contact you would be guilty of the fence you missed right you missed that because it's an attempt situation  different than actually if you actually make contact i believe that that is what makes the statute divisible oka i don't like the statues divisible i think the statue is not divisible so you have to look at the least of the not what happened here there was actual contact with the fluid but we don't look at the facts of the crime and i agree with him it was like we're and of course we all know that we've got i mean that's what it was so there was contact is the main problem like you think you can learn the next case of the morning