All right, as these folks are putting their things together we'll go ahead and call the case of Castillo versus Attorney General. Mr. Gyer may proceed. Good morning, Your Honor. May I please the court? I'm Francis Excheire of the Office of Michela Alvarez and I represent the petitioner Bernardo Castillo. You want to reserve three minutes for a battle? All right, thank you, Your Honor. Your Honor, the board's decision upholding the immigration judges order of removal against petitioner Bernardo Castillo was arbitrary, erroneous and abusive discretion. As a result of this arbitrary decision, Mr. Castillo, who has lived in the United States for 28 years, is ineligible to apply for any form of discretionary relief in the form of cancellation of removal in the immigration court and his removal from the United States has been rendered virtual certainty. You've been disturbed that the BIA is not deferring to New Jersey's categorization of shoplifting under the statute that was in place at the time, right? Well, we submit your Honor's ad that the board is also not consistent with its holding in Islam-Azhar. In Islam-Azhar, the board held that there were a number of factors that were relevant and determined determination of whether a conviction under the INA satisfies the conviction for requirement. And they clearly did reference as one of those factors the state's characterization of the offense. But as Lamelart said that a jury trial was not necessary for a criminal conviction under federal law either. Six months or less, the need one, they said, right? Yes, Your Honor's. But they also said that, well, Your Honor's, they said that that was the way, as I read Islam-Azhar, they said that that was a sufficient, they, Your Honor's, that was one factor of a multi-factor test. And as I read Islam-Azhar, it applied essentially a multi-factor test. It clearly said in the very text of Islam-Azhar that the fact that the Oregon, in page 687, the fact that the Oregon quarter of appeals concluded that the conduct of defendant who's misdemeanor offense was prosecuted as a violation was not a crime
. So they held that it was significant. Sure. Under whose say that, didn't we say that that was the, that as long as the birth of proof is beyond a reasonable doubt that that is sufficient for a criminal conviction? Yes, Your Honor, this Court did and it's unpublished whose same decision based essentially made. It was unpublished. It was unpublished. Yes, by a single factor test. I would simply, the petition would simply submit that with greatest respect to the court, with deep respect to the court, that the court got long in reading Islam-Azhar is applying a single factor test. As the text I read to you shows that the state's characterization of the offense was being... I'm considering significant. How many of the things that Islam-Azhar brought up do you need to make a criminal conviction if just the burden of proof is not sufficient? What else, what of the other, I think there are five factors that they may listen to? How many factors do you need for a conviction or a disorderly person's violation conviction to equal a criminal conviction under federal law? Well, unfortunately, Your Honor, Islam-Azhar does because as I read Islam-Azhar, it held that the preponderance of the evidence standard that was in Islam-Azhar was a sufficient to deem it not a crime. And it didn't address those other factors. And my position is that it's sort of a totality of the factors test and that the weight of the factors in the instant case, including the fact that New Jersey distinguishes findings of guilt for disorderly person's offenses from conviction for crime, the fact that no legal disability, no disability or legal disadvantage is attached to a conviction or to a finding of guilt for disorderly person and the lack of procedural protections that are provided in court. And including right to a grand jury indictment and right to a jury trial that the weight of those factors are on the side of that deem that this should not be considered a crime under the INA. Is your decision contrary to Burrell? Your Honor, I read the Burrell decision as I- It was hurt, circuit, and you know
. Right. There was no, it was another unpublished decision and there was no reference in Burrell specifically to matter of Islam-Azhar. So I'm not sure how Burrell really read that. I mean, they just sort of referenced, I guess, that the, you know, another case, I think that said that the state's characterization is not important. But I submit to you to this panel that Islam is our- the text of Islam is ourself says a state's characterization of the offense is important as well as there's another decision that we submitted with the brief which was a grandly and unpublished non-presidential decision matter of a great bjaric. And in that particular case, the board went into the factors that are to be taken into consideration in Islam's are they outlined the factors including the jurisdiction characterization of the offense, whether it's- Yeah, one of the factors was the right- the right whether you have a right to counsel and New Jersey municipal court, you have to write the counsel in this proceeding. But what difference should that make for this court when your crime was represented by counsel and the New Jersey municipal court? Well, that was just one of many factors that the board and in outline in Frick Ray Bjaric. It was also the fact that the- there was no legal disadvantage or disability attached to the- to the offense. The fact that it was a civil kind of a prosecution or civil. But despite the fact that Mr. Castillo did have counsel, he still was deprived of some of the procedural protections I think that the board in Islam is our and in Frick Ray Bjaric was concerned with. Let's take a step back. The Supreme Court has said that we're supposed to be examining or considering crimes in a generic sense. If- if New Jersey is or was an outlier because of course it's changed its statute sense as we know. And the vast majority of the country treats shoplifting as a criminal offense, clearly as a criminal offense, not a disorderly person's violation. What is wrong with the BIA looking at this and saying we're consistency across the country? We're going to treat this as a crime because in a generic sense you steal from people, you walk into the store and you steal from them
. That's crime. What's wrong with that? You want to- if the board had said that Mr. Castillo's decision, there might be nothing wrong with it. But what the problem is is that the board, in this case, simply cited Islam as our said well it's a beyond a reasonable doubt standard ignored all the other factors at issue in Islam as our and specifically contradicted the holding Islam as our saying that the state's characterization of the offense was not relevant when it clearly was in the language of the law. And so, the court has spoken very forcefully about the need for agencies to be consistent in their decisions. And when agencies depart from presidential decisions without a recent explanation as in Favre Vesokalamas, the court has held that the board's decisions are arbitrary, and they are very abused this question and are not entitled to chevron deference. Well, I take it, but you're really seeing here is a remain back to the BIA for them to reevaluate this under their standard Islam as our and determine whether or not under its multi factor agency tests this meets the criminal definition under federal law. Is that you're seeking? Well, you're on the first place, we say that if we made a fact that the court in fact applies the Islam as our standard correctly, the way to the standards suggest that Mr. Castile was not convicted of a crime. You say that as a matter of law, we should say under their standard that he was not convicted of a crime. Or do you say that we should remain it to the BIA for them to do what they should have done in the first place. And that is evaluate what happened to him under their multi four or five standard tests. Right, but I would argue in the alternative first the court, I would argue that there are sufficient enough by deviation from Islam as our and the petitioner satisfies enough of the conditions outlined in Islam as our for the courts to say that this was not satisfied. I a definition of a conviction under Islam is our but at a bare minimum given the concern of this court about agency consistency and given the concern of the United States Supreme Court in journal line decision recently another decision that that's you know said that you know agencies have to be consistent when they're not consistent in their and they don't give reason opinions in their decisions. They are using discretion and they're violating due process so I would argue at a bare minimum this case should be remanded to the board to properly apply the Islam as our if your assertion is if your assertion isn't sounds like it is that they didn't follow their own precedent because they didn't they didn't tick down through the list. Why isn't why wouldn't that be the preferred thing to instead of the minimum thing why wouldn't that be the first step we would look to is to send it back for the agency to do it correctly
. Well you're under just because I think the factors under Islam as our government you know I think the petitioner satisfies the weight of the factors if we apply all the factors to it but if the court is concerned about the lack of consistency agency it certainly valid to let the board have and I think under Chevron sometimes to let the board evaluate first under the proper standards. So what was the kind of now let me ask you about crime because the when this court sent the case back before it was specifically because we wanted both sides to talk about what does it mean to be a crime that was the purpose of the remand and precious little has been said by either side about that. So what is your position about whether what happened here I mean you talked a lot about conviction and what constitutes a conviction and that's what as Lamas are is all about is conviction it's not about whether something's a crime convicted of what is the real issue that we were wrestling with before. So even if this is shoplifting as a quote disorderly person's offense what do you say about whether that's a crime or not. Well you're on a we concluded also in the brief if you notice some of the older cases under the INA where conviction for a crime was kind of a unitary term and so given that the INA doesn't specifically define what a crime is we have to look to the case law which which the earlier case law tells us. Well a conviction for which use just the phrase conviction of a crime because it was before the INA had to define a crime which I think was in in Iowa. And basically they use that sort of phrase as a whole and said basically where the jurisdiction distinguishes the offense from a conviction for a crime. I think there was a case a matter of C where there was a Buffalo case where the municipal offense was distinguished from a crime a matter of D.A. as well and also some of the intent of the statute. And so reading through the history of the INA basically that was pretty much a unitary term and it was a unitary term you mean crime involving moral. Conviction for a crime. Yeah and so it's very hard to divorce the crime from what a conviction is. So was it a was it a mistake for the court to send this back to start with and don't be don't be reluctant to say we blew it. No you run in that case I don't think it was a mistake at all because we had first of all the board had it in the first case applied a completely wrong statute. So it was the question we asked wrong when we said the question is conviction for what it sounds like what you're saying is the position that we've heard from the government and from the BIA on the remand is if it's a conviction it's a conviction of a crime
. And you seem to be agreeing with that if it's a conviction it's a conviction for a crime. Well is that am I hearing you right or do you have a different. I think that historically the boards definition of a crime has been intergrouped like treated as a unitary term of art with the word conviction so I would agree yeah. But I do think it was worse because we really don't we have so little. Case we have so little to go on when we're trying to say what a crime is I think it was an effort of both sides to try to be more. Why are you giving so much away you're giving the ranch way under New Jersey law at the time. The addiction of this orderly person's act was not under New Jersey law considered a crime. It was not considered a crime as a matter of fact as a matter of fact. New Jersey Supreme Court has said that in criminal or civil litigation you couldn't impeach a witness for a violation of a disorderly person's act. It was not in the peach of all offense for you know you previously could have a crime. So under New Jersey law the constitution itself at the time violations of the motor vehicle traffic act I think disorderly person's act under the same title. It's certainly administered by the same court even is equal courts is was never considered a crime. Right but that was the fact of your honor of the whole weight that the the board should give to this. Well one of the factors under Islam about is that one of the factors that they look at is whether the state in which the proceeding occurred itself considered it a crime. And under New Jersey law it was never ever considered a crime. That's correct
. Yes that's correct. Okay I see you matter. All right thanks we'll have you back on our little Mr. Gyer. Thank you. Ms. Klein. May I please the court. My name is Nicole Nardone attorney for the respondent the United States. What's your name again Nicole Suzanne Nicole sorry I go by the middle name. It's a little confusing. The court should uphold the boards finding that the petitioners New Jersey shoplifting conviction constituted his second crime involving involving moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and final and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and moral and Just give the way out of this. because reading this, I mean, we sent it back with a very specific message. To address the issue of a crime. Right, right. And if you look at the second page of the Board's decision, the second paragraph on that page, the Board very specifically says in order for the shoplifting offense at issue in the case, to constitute a crime under section 237 of the Act
. The elements of such an offense must be first proved beyond a reasonable doubt, and to the conviction for such an offense must constitute a conviction under section 101A48. Right. Which sounds like it's getting right into what a conviction is. And in fact, later in that same paragraph, the Board says whether New Jersey considers his offense to be a crime is not relevant. Right. So far from addressing whether it's a crime or not, the court seems to be saying. I think what the court was saying here is that essentially there's two things that need to be looked at. First, is the definition of conviction. And under 101A48A, that term has been defined very broadly and has been interpreted very broadly by both the court and the Board to and it does not require a jury trial. It does require some form of punishment. It doesn't contemplate in any way states, constant. I assume we agreed with you on that, right? Because and answered the question that Judge Stapleton posed in his opinion for the court when this was sent back to the Board, conviction for what? And the question was crime. What's the government's position on that question? I think here, I think here the board in addition to essentially saying that the question of what is a crime needs to be looked through first, the lens of what is a conviction. But then secondly, there was one critical factor that was outlined matter of whistle, bizarre. And I know positioner makes much of this argument that whistle was our discussed all of these factors. But if the court is to look very, look really closely at that decision, I think it's very clear what the basis of that decision was as this court held in who's saying
. All right, look. The board held this was a crime and as I read their decision, they held it with crime because he was found guilty, beyond reasonable. Exactly, that's what he's going back to. However, under the board's own, in order for us to give it Chevron Deferreds and respect the board, it has to adhere to its own decisions as to how these are now under Islamabad. In order for a matter to be considered a crime, the board itself has said number one, I'm ticking it off your maybe not. The matter in which the state itself considers such factors. Okay, whether the state considers itself. Right, right. There is no question under New Jersey law. Confiction of a disorderly person's violation is not a crime. You can't even mention it in impeachment. It's proper. I understand that you're. Secondly, under New Jersey law. Okay, next thing, the proceedings. The proceedings in municipal court are a local prosecutor files a statement or police officer files a statement and goes to a judge
. And the proceedings, there is no indictment. There's no there's no grand jury. Also, the rights, there's no right to counsel in this proceeding in which the defense, the petitioner was convicted. He had no right to have counsel pointed no question about it. He didn't have to be convicted under New Jersey law beyond a reasonable doubt. Okay, next thing. The consequences, the consequences upon conviction of the disorderly person's violation in New Jersey is. And we have counsel people convicted of this that they do not have to state that they have ever been convicted of a crime. Making applications and an employer could not consider it. Otherwise, it would be discrimination. Okay, let me just finish. And there is no disability by reason of being convicted in New Jersey. You don't lose your right to vote. You don't lose any of the other rights attended upon conviction of a crime. Islamabad required that in order for it to be considered a crime. The agency itself said you have to look at this multi factor test and then determine
. And that's for the agency to do not to this court. Whether it is a crime under federal law. The agency in this case did not follow its own rules. It found that he was convicted beyond a reasonable doubt. The Tisha admits it and it found nothing else. Okay, two points I'd like to. I'd like to focus on my recitation correct as to New Jersey law. New Jersey law, absolutely. I mean, that's that's really not my focus here. I'm here. Well, it's for the focus. Certainly certainly. Certainly. I'd like to address it. In Islam, Islam, Zara, the court does talk about how the state treats a crime as being significant. And they specifically talk about this label, however, the label. I think it's the label terminology that what what a state considers a crime versus a violation versus an offense, for example, is not the basis upon which the immigration for purposes of interpreting immigration regulations that the board is to be looking at because those terms can vary so much from state to state that if that were if we were to follow that principle, then a person with one conviction for the same exact behavior in one state would be treated differently for purposes of immigration than a person who committed the exact same crime in another state. I mean, there needs the idea here, I think, is to create some uniformity in crime. And I think that concept was discussed in Islam, Zara. Accepting that, get to the issue of what do we do with the rest of the factors that are discussed in Islam, Zara. I would like to have to concede that they didn't get they didn't get boo, not a single mention in this case. I would like to say that our position is that Islam with R does not necessarily it does discuss a number of factors, but as this court found in Hussein, it's a discussion of these factors. It's an end, you're not being. That's not presidential opinion. We're not bound by it. We shouldn't even consider it. Yes, I understand that. But I would like to look at it carefully at Islam, Zara. I'll point to two parts of that decision, I think, are very important. If you look at the second page, it's the one, two, three, fourth paragraph at the very end of that decision you might have before you. And the board talks about because this is the crucial factor. This is the crucial error that we had made
. I think it's the label terminology that what what a state considers a crime versus a violation versus an offense, for example, is not the basis upon which the immigration for purposes of interpreting immigration regulations that the board is to be looking at because those terms can vary so much from state to state that if that were if we were to follow that principle, then a person with one conviction for the same exact behavior in one state would be treated differently for purposes of immigration than a person who committed the exact same crime in another state. I mean, there needs the idea here, I think, is to create some uniformity in crime. And I think that concept was discussed in Islam, Zara. Accepting that, get to the issue of what do we do with the rest of the factors that are discussed in Islam, Zara. I would like to have to concede that they didn't get they didn't get boo, not a single mention in this case. I would like to say that our position is that Islam with R does not necessarily it does discuss a number of factors, but as this court found in Hussein, it's a discussion of these factors. It's an end, you're not being. That's not presidential opinion. We're not bound by it. We shouldn't even consider it. Yes, I understand that. But I would like to look at it carefully at Islam, Zara. I'll point to two parts of that decision, I think, are very important. If you look at the second page, it's the one, two, three, fourth paragraph at the very end of that decision you might have before you. And the board talks about because this is the crucial factor. This is the crucial error that we had made. In this case, they reversed their prior decision. They reversed the prior decision specifically because they found that this crime was convicted under the ponderance of the evidence standard. And the distinction that the board was making was that this was not a true criminal proceeding for that reason alone. And if you look at here at footnote. What is the language you're looking at? Where they say. I'm looking at page two. For that reason alone. I'm looking at page two. It says, right before the issue section, the last sentence says, because of this crucial factual error, we reverse our decision and we reach a different conclusion. Okay, that's all discussing the ponderance of the evidence standard, which they discovered they in error didn't recognize that that was the standard. And then the second part of the decision is at footnote four. You see here, it's under the analysis, the one, two, three, four, five, six paragraph at the very bottom. It says, this is the bedrock principle of the constitution that each element must be proven beyond a reasonable doubt. It then sites to footnote four where it discusses some of the factors that were listed earlier, including a right to a jury trial, including right to counsel, and says that this is a petty offense. Those aren't even implicated here. Right
. In this case, they reversed their prior decision. They reversed the prior decision specifically because they found that this crime was convicted under the ponderance of the evidence standard. And the distinction that the board was making was that this was not a true criminal proceeding for that reason alone. And if you look at here at footnote. What is the language you're looking at? Where they say. I'm looking at page two. For that reason alone. I'm looking at page two. It says, right before the issue section, the last sentence says, because of this crucial factual error, we reverse our decision and we reach a different conclusion. Okay, that's all discussing the ponderance of the evidence standard, which they discovered they in error didn't recognize that that was the standard. And then the second part of the decision is at footnote four. You see here, it's under the analysis, the one, two, three, four, five, six paragraph at the very bottom. It says, this is the bedrock principle of the constitution that each element must be proven beyond a reasonable doubt. It then sites to footnote four where it discusses some of the factors that were listed earlier, including a right to a jury trial, including right to counsel, and says that this is a petty offense. Those aren't even implicated here. Right. So, I think they weren't implicated there, but the board didn't say these things are irrelevancies, these things are things that can be ignored. It acknowledged the existence of those things again. I didn't say there are things that being ignored, but here they were the exact same. And here in the board's decision, before us, they specifically referenced us the Mazar. And it was also a similar petty offense case, you know, implicating the same concerns. And it's our position that the board is not required in the situation. This is a de novo review for the court with certainly deference to the board. The board cited the determinative issue here, which was whether or not this was a true criminal proceeding. Well, that's not the determinative. That's one of the issues that has to be looked at. It's not determinative. You're making an argument here, which is not true. That's one of the factors. It's not determinative. And I'll try and restate the question of Judge Jordan. Do you? This was sent back to the BIA for them to do their work
. So, I think they weren't implicated there, but the board didn't say these things are irrelevancies, these things are things that can be ignored. It acknowledged the existence of those things again. I didn't say there are things that being ignored, but here they were the exact same. And here in the board's decision, before us, they specifically referenced us the Mazar. And it was also a similar petty offense case, you know, implicating the same concerns. And it's our position that the board is not required in the situation. This is a de novo review for the court with certainly deference to the board. The board cited the determinative issue here, which was whether or not this was a true criminal proceeding. Well, that's not the determinative. That's one of the issues that has to be looked at. It's not determinative. You're making an argument here, which is not true. That's one of the factors. It's not determinative. And I'll try and restate the question of Judge Jordan. Do you? This was sent back to the BIA for them to do their work. And that is to determine whether or not this was a crime. Under the BIA's own directive, they have to look at a multifactor test to determine whether this was a crime under state law. It is not a crime under under New Jersey law. And they determined one thing as a way. I read it. They determined their opinion is based on that he was convicted beyond a reasonable doubt. They didn't have to send it back to the BIA. The petitioner would have did it when he was here originally that he was convicted beyond a reasonable doubt. The reason it was sent back was for the BIA to do their business. So my question you is this. The petitioner says we should, as a matter of law, the court should adjudicate this as not a crime. He has a backup argument, however, which he didn't make very strongly, but he would prefer the former argument. His backup is that we should once again revisit a tell this case to revisit the BIA and to tell them to shape up and do their business and look at the multifactor test and then tell us whether they did this as a crime. What do you think of his proposal, the two multifactors, the two-inch proposal that he makes? Well, I don't agree that the case needs to be branded. I believe that if we were to looking at this case and asking a chevron deference as required here or as appropriate, I think that the finding here was certainly appropriate under a chevron deference. It should be deferred to because it is not in any way, I'm sorry, let me just cite the language, but
. And that is to determine whether or not this was a crime. Under the BIA's own directive, they have to look at a multifactor test to determine whether this was a crime under state law. It is not a crime under under New Jersey law. And they determined one thing as a way. I read it. They determined their opinion is based on that he was convicted beyond a reasonable doubt. They didn't have to send it back to the BIA. The petitioner would have did it when he was here originally that he was convicted beyond a reasonable doubt. The reason it was sent back was for the BIA to do their business. So my question you is this. The petitioner says we should, as a matter of law, the court should adjudicate this as not a crime. He has a backup argument, however, which he didn't make very strongly, but he would prefer the former argument. His backup is that we should once again revisit a tell this case to revisit the BIA and to tell them to shape up and do their business and look at the multifactor test and then tell us whether they did this as a crime. What do you think of his proposal, the two multifactors, the two-inch proposal that he makes? Well, I don't agree that the case needs to be branded. I believe that if we were to looking at this case and asking a chevron deference as required here or as appropriate, I think that the finding here was certainly appropriate under a chevron deference. It should be deferred to because it is not in any way, I'm sorry, let me just cite the language, but. Essentially a permissible construction of the statute. And the permissible construction of the statute, you're saying that the BIA has articulated is that any conviction is a crime. That's what the government's position. Any conviction, which uses this, at least this reasonable proof beyond a reasonable doubt. There's proof beyond a reasonable doubt. That constitutes a crime for purposes of the INA and your assertion is that anything less than that would lead to disorder because there would be a multiplicity of outcomes possible across the country. Yes, just with one, with one caveat, your honor, which is that this is the specific set of factors, this specific conviction that the court was looking at. It found here there was a conviction of a crime for purposes of INA because number one, there was a formal judgment by the court. Number two, there was a fine as required under the definition of conviction. And number three, he was convicted in a proceeding beyond a reasonable doubt of each of the elements of the crime. So you're saying there is more than one factor? Well, as I mentioned earlier, conviction has been defined is the definition for conviction under INA 48a. Yeah, it's in the code. So those factors are included and I think they were included here by the court referencing the term conviction. And the position of the government is conviction alone as defined by the INA, conviction means crime. Right, yeah. Okay
. Essentially a permissible construction of the statute. And the permissible construction of the statute, you're saying that the BIA has articulated is that any conviction is a crime. That's what the government's position. Any conviction, which uses this, at least this reasonable proof beyond a reasonable doubt. There's proof beyond a reasonable doubt. That constitutes a crime for purposes of the INA and your assertion is that anything less than that would lead to disorder because there would be a multiplicity of outcomes possible across the country. Yes, just with one, with one caveat, your honor, which is that this is the specific set of factors, this specific conviction that the court was looking at. It found here there was a conviction of a crime for purposes of INA because number one, there was a formal judgment by the court. Number two, there was a fine as required under the definition of conviction. And number three, he was convicted in a proceeding beyond a reasonable doubt of each of the elements of the crime. So you're saying there is more than one factor? Well, as I mentioned earlier, conviction has been defined is the definition for conviction under INA 48a. Yeah, it's in the code. So those factors are included and I think they were included here by the court referencing the term conviction. And the position of the government is conviction alone as defined by the INA, conviction means crime. Right, yeah. Okay. That's, I guess I want you to address my grief then. The assertion that any other way of looking at this would lead to a hopeless variation across the country was something that Justice Alito raised in a different context but still talking about immigration law just a month ago. And the Supreme Court said, look, tough. We're not worried about that. And that was with Judge Madelaw. That was with the application of the category of the vote. Right. Right. So how far does that argument get you that we've got to defer under Chevron to the assertion that no matter what a state says or as the BIA said it, what New Jersey thinks is a crime is irrelevant? Well, you've got to pay attention to us on this because otherwise there'd be variation. I think it, I think it's significant that, and this court has noted that in a cost of, in the cost of e-cashcraft, that in draft, in redrafting, INA 101, A48, a Congress intended to broaden the concept of conviction because it had been so subject to the vagaries of state court and the vagaries of state law that it was, it was, it would result in inconsistent outcomes. And that is the concern here. The board is trying to create some kind of bottom line or very, you know, and quite broad, yet a very bottom line, thankful what is considered a conviction of a crime. So we're back to conviction equals crime. Okay. Gotcha. Thanks
. That's, I guess I want you to address my grief then. The assertion that any other way of looking at this would lead to a hopeless variation across the country was something that Justice Alito raised in a different context but still talking about immigration law just a month ago. And the Supreme Court said, look, tough. We're not worried about that. And that was with Judge Madelaw. That was with the application of the category of the vote. Right. Right. So how far does that argument get you that we've got to defer under Chevron to the assertion that no matter what a state says or as the BIA said it, what New Jersey thinks is a crime is irrelevant? Well, you've got to pay attention to us on this because otherwise there'd be variation. I think it, I think it's significant that, and this court has noted that in a cost of, in the cost of e-cashcraft, that in draft, in redrafting, INA 101, A48, a Congress intended to broaden the concept of conviction because it had been so subject to the vagaries of state court and the vagaries of state law that it was, it was, it would result in inconsistent outcomes. And that is the concern here. The board is trying to create some kind of bottom line or very, you know, and quite broad, yet a very bottom line, thankful what is considered a conviction of a crime. So we're back to conviction equals crime. Okay. Gotcha. Thanks. Thanks very much. Mr. Geiger, your rebuttal. Well, you're, you're wondering even assuming the opposing counsel's rationale that conviction equals crime is to be given way. That's what, as Lamas are essentially did. They interpreted the definition of a conviction and they said you have to have to satisfy certain factors in order to be considered a conviction. You need to speak specifically to what Ms. Nicole said, though, Mr. Geiger. She said whatever Mr. Geiger might think, as Lamas are stands for, it doesn't stand for a multi factor test. And she cites the specific language talking about the bedrock principle and this is crucial factor. All pointing to proof beyond a reasonable doubt. What in is Lamas are shows she's wrong if there's anything? Your Honor, it's the language that I read to you before where it says on page 687, significantly the Court of Appeals in State rewrote. Supra concluded that the content of the defendant who's Mr. Meter of Friends was prosecuted as a violation was not a crime
. Thanks very much. Mr. Geiger, your rebuttal. Well, you're, you're wondering even assuming the opposing counsel's rationale that conviction equals crime is to be given way. That's what, as Lamas are essentially did. They interpreted the definition of a conviction and they said you have to have to satisfy certain factors in order to be considered a conviction. You need to speak specifically to what Ms. Nicole said, though, Mr. Geiger. She said whatever Mr. Geiger might think, as Lamas are stands for, it doesn't stand for a multi factor test. And she cites the specific language talking about the bedrock principle and this is crucial factor. All pointing to proof beyond a reasonable doubt. What in is Lamas are shows she's wrong if there's anything? Your Honor, it's the language that I read to you before where it says on page 687, significantly the Court of Appeals in State rewrote. Supra concluded that the content of the defendant who's Mr. Meter of Friends was prosecuted as a violation was not a crime. So it was significant that the violation was not considered a crime by the jurisdiction. So that, so you can't just say it, it's significant there and then it wasn't significant here. And also the fact that as I read that's Lamas are, it said that the beyond reasonable doubt standard and the other factors that it found were, particularly that was a sufficient but not necessary. That's how I read the decision. They didn't have to go into the other factors because that was such an egregious procedural departure from constitutional principles that that settled the case right there. So they didn't say the procedures which generally attend criminal proceedings. Yes, Your Honor. In other words, that are generally attended to the court proceedings. They don't have to be all of them but they have to be some of them. Right, and here, as I've stated before, it didn't get grand jury, didn't get the D jury. And I would submit to the Court that that's along with the other factors, including the State's characterization of the offense is significant enough for this at bare minimum to be remanded before the complete lack of clarity of the Court. And it completely failed to properly apply the factors. And I would just remind the Court in closing that this man has been in this country for 28 years. And this to allow him to be removed, he has no other eligibility for relief aside from cancellation. How many convictions does he have? I believe he has four, Your Honor. How many? Four
. So it was significant that the violation was not considered a crime by the jurisdiction. So that, so you can't just say it, it's significant there and then it wasn't significant here. And also the fact that as I read that's Lamas are, it said that the beyond reasonable doubt standard and the other factors that it found were, particularly that was a sufficient but not necessary. That's how I read the decision. They didn't have to go into the other factors because that was such an egregious procedural departure from constitutional principles that that settled the case right there. So they didn't say the procedures which generally attend criminal proceedings. Yes, Your Honor. In other words, that are generally attended to the court proceedings. They don't have to be all of them but they have to be some of them. Right, and here, as I've stated before, it didn't get grand jury, didn't get the D jury. And I would submit to the Court that that's along with the other factors, including the State's characterization of the offense is significant enough for this at bare minimum to be remanded before the complete lack of clarity of the Court. And it completely failed to properly apply the factors. And I would just remind the Court in closing that this man has been in this country for 28 years. And this to allow him to be removed, he has no other eligibility for relief aside from cancellation. How many convictions does he have? I believe he has four, Your Honor. How many? Four. And this is, you know, to allow him to be removed after 28 years in the country on the basis of such a legally deficient decision that just departs from precedent without explanation. I think it would be an abusive discretion. I ask the Court to at bare minimum remand the case to, I ask the Court to at bare minimum remand this to the Board of Immigration appeals. Thank you. Okay. Thank you very much, Mr. Geier. Thank you. Thank you. Thank you. It's a piece of work. Okay. We'll all worry. Okay. Yeah. Okay