jersey and new jersey could define this charm however new jersey wants to define it that if new jersey has defined everything from your index finger to your foot to maybe yours bottom as a deadly weapon when the judge says does your client understand you and accomplice liability he says that right after explaining that you know he's your role is that you trip the individuals he fell to the ground two other liability can mean one or two things or both one was that he's liable for the spin to vigils hitting this person on the ground separately and or is that you know he had a duty to stop trying to intervene and try to stop these other individuals from hitting him because he started everything by tricking the individual and so that really you know you did kind of summarize sort of my argument i understand that there is a body of case law that's not exactly in fee for fear of my client and i sort of acknowledge that through every stage of litigation  draw back a little bit of that i greet you that the one thing i would say in response to be that is that you twenty years ago there was a judge and a prosecutor in that courtroom or and these packs were laid out and they found that factual the government can say well there's got to be some sort of other facts involved here explain when we look at new jersey law you know i'm from wisconsin and i just your client bear the bear the burden on that question there would be at the end of the haven't yet but if we were to adopt silva trevino three from october two thousand and sixteen we're bound by the record of conviction here and you have an accomplice if accompli and in most cases the judge simply says you know can we rely on the criminal complaint too for the factual basis on new jersey is quite different they actually require the defendant to be personally question so i understand the new jersey judge simply could be saying that this defendant is responsible not just for the tripping but for the friends punching kicking and striking cracked so and that's that's the only context we have in this we're not going to see in the new jersey judge failed to comply with new jersey law that's certainly not and i'm sorry i i don't think that ten seconds of discussing up the constitutionality is really going to make a note of that's all right accomplice response is liable for the actions of this co defendants ok so far so good who may have been the ones bearing the yet lee weapon now i have a big problem read that deadly weapon the inference that something that the federal generic law thinks that deadly weapon as opposed to new jersey which may think that your fist is a deadly weapon but i have another problem if it's just your sister when you spit on somebody it's a deadly weapon because maybe this problem gets inside and i are it's your index finger because to me there is no meaning left to the term at all right  let me take that second point first under new jersey well it can't just be i mean there are cases which have you know when we think it is conventional deadly weapons the second time brenda cases are going to  asking you you have somebody has to know this right because in his case it is the fear and the fist is more well the deadly weapon requirement under federal  not seem to encompass a fist we're talking about is whether he gets some sort of exercise of discretion he may well be turned down and i mean this is this is a threshold legal question about whether this old term from the common law of moral turpitude applies to a bar fight right so the difficulty is new jersey has a subtle back question at least when it comes to not so why not use the principle in immigration law that you c and as well as the principle of lenity and stake through this in favor of the alien let's move on to the exercise of discretion that's a well established principle of immigration law but when it comes to his to the  obligation to show that he is eligible for relief of course he does and he has given you what you couldn't find apparently the plea colloquy that was the necessary part of the new jersey proceeding and he has made it clear  we're not really worrying about the tripping anymore because we seem to moved over to accomplice the people that that a bunch of his friends are are beating up this guy who's now down on the floor and the new jersey judge would be remiss if the new jersey involves intent or used to or sort of use of an implement material some other object in a way that causes serious bodily injury and what we're trying to do is figure out whether or not that spins beyond the generic definition of the offense and what you can you give me what you think the generic definition of the offense is what's a generic definition of gently weapon i think that the generic definition or at least the things that the board hangs its hat on what crime involving real turpitude i guess what sort of what is the deadly weapon have to be something you can hold you are we all deadly weapons in the right situation i believe the crimes are more i mean the and this is something that the board would have to determine if this goes back because  actually because it strikes me if the board's own definition requires it to be an instrument of some kind we have a different case from the one that if the board thinks said that we're all to if my glasses are a deadly weapon because i can take them off and poke somebody in the eye with it then i mean hard for me to see what the limiting factor is i think there almost due process problems there but that is me and i believe what the court what the board was trying to do was just say of the board to say we just don't know the answer to the question we don't we don't know as we sit here i would not have any idea what happened with the with the accomplices that is that is correct so when you have a when you have i don't know if it's fair to characterize that as an inconclusive record or not you may have if you want to but faced with the record we have who wins and who loses we're not going to answer the question it's not we don't know what the deadly weapon was or was not it's up to him one hundred non generic so if we were to take a new jersey judge's description of what the accomplices did you know punch struck and we said well that's the record that and we understand what those words are then we do have a record imposed three words right the board would be the board would then need to determine whether or not he sat and waited that counted but again that record we just don't know i mean even when we know the words the new jersey judge and under the burden of proof right so all people have can so people can come in and you have bad it's unfortunate but if you have bad records that's going to fall against them against the person who was articulating the  comes up as a result of the way in which this case rose i mean the way it came out below is that he argued that his foot was the deadly weapon right that that was the non generic use of the deadly weapon statute and the board then responded by saying it wasn't your foot you were an accomplice it was whatever these other individuals did and we don't know based upon that how to evaluate this so given that i mean the board given what the board was confronted with their determination that this  you ran up and i told you that you've got i'll give you a minute