Morning, Your Honours. I may please the court. My name is Michael Henry, and I represent the petitioner, Gulam Maboube. I would respectfully request to reserve three minutes for a vote. The Board of Immigration Appeals in this case determine that petitioners conviction under the indecent assault statute of Section 3126A8, the Pennsylvania Criminal Statute, constitutes a crime-evaluing moral perpetuit. The issue in this case is whether that decision is entitled to deference. We believe first that because the BIA departed from the categorical approach set forth in Partica, that it is not entitled to deference under that categorical approach, the court, as it's a- Well, before we get to the categorical approach, do we owe them deference in their definition of what moral perpetuit is? Because, you know, they're an agency, we're supposed to, you know, give deference to agencies. Do they have special knowledge or, as Congress vested them with regulatory understanding that we should respect because they deal with this all the time. We don't deal with it that often. The BIA is entitled to deference when it's interpreting a statute that it admin- it administers, and the statute that defines, or that makes a conviction of a crime- involving moral perpetuit, a deportable offense, is certainly a statute that is under their administration. So we, Judge Kownd's question calls for a yes answer
. In fact, this court is set as much in the NAPEC opinion where we indicated that we accord chevron deference to the BIA's definition of moral perpetuit. That's right. Well, the definition is entitled to deference and they've defined two essential elements to be present in a crime- and they've been more of perpetuit, and those two elements are an act of strata and inherently bad act and a mens-ray, which is an evil intent. And that definition, as it applies, to state statutes, is entitled to deference. But the question here is whether they've appropriately applied it to the criminal, the statute of conviction. There are three important points about that. We've never said, this court has never said, though, our presidential opinion, has it that whether a criminal offense that does not contain a mens-ray element, can constitute a crime of moral perpetuit. That's correct. I believe other circuits have, and the BIA certainly has, and that's what they're asserting here. But I think in the instances where other circuits have done so, and I think where the BIA has done so, in the context of strict liability sexual offenses, that all of those decisions rely on the fact that there was a sexual intercourse or penetration
. Well, yeah, but how does one, isn't intent inextricably bound up in the sexual molestation which was done here? How do you negligently or carelessly molest someone? It can't be done. Well, so about, does the statute that he was convicted under, by its very nature, bespeak intent? Well, there are two, there are several aspects of this statute of conviction, which I think are important here. One is that it does, the absence of consent is not an element. Secondly, the state of mind of the defendant with regard to the age of the claimant is also not an issue. And I think that, that, we look at it categorically, you're correct. And I think those two elements, and if you look at the categorical approach, the least culpable conduct under the statute, give it to me. Before you get to that, let me just follow up on Judge Collins' question with respect to the statute and let me go to, not to the purpose of the statute, but explicit language of the statute, the definition of indecent contact, which requires that it be full of the purpose of arousing or gratifying sexual desire in either person. Right. So as the earlier question suggests, I mean, we can't have merely a negligent occurrence of that event for it to be a violation of the statute, can we? Well, that doesn't, that does go to the men's ray element, but it doesn't go to the inherently base, the actous ray aspect of a crime of volumoural turpitude. Because someone, two people can engage in that conduct in a consensual manner, and it is not inherently based because it's a part of natural human conduct
. So you're right. It does establish that there is some intent involved, but it involves, it establishes an intent with regard to an act which under the least culpable conduct standard is not inherently based. So both those things are present. I'm sorry, you lost me there. One over my head. I understand as far as you went that engaging in this conduct is by its very nature intent to do so, because you can't do this without intending to do it, correct? That's correct. But the petitioner intended to engage in the conduct. He didn't do this without knowing he was not doing it, did he? Correct. Okay, well, let's take it one step. All right
. So that he intended to do the conduct, correct? That's right. Well, does that satisfy the men's rate requirement that the question of intent is fulfilled, and the only remaining question is, is it so morally turpitude in this as to be as derives to the level of a moral turpitude? Well, I think the moral turpitude in this, if you're looking at strict liability offense, the moral turpitude involves two aspects. One, the level of the seriousness of the conduct and also the age of the complainant. I think society naturally condemns this type of activity when the person is under a certain age, and that's appropriate. But when you're talking about the intent and the that all of these are done purposefully, both elements have to be present. So if it's not an act as rarest, even though the men's rate might be there as far as the actual act is concerned. What's the difference between act as rare? I'm not too sharp on this. Act as rarest is different than men's rate. Yeah, I think act as rarest shorthand is an inherently based act and evil act. Well, how does the legislation, the statute itself, makes it an evil act, is it makes it an offense? Well, what they're making an evil act is in decent contact, which intentionally inflicted by nature of the very crime
. Right. But if under the least culpable conduct standard, that doesn't constitute inherently based conduct, then what is the least culpable conduct that someone could engage in this conduct, which you acknowledge is intentional, that is not morally, that's not rise to moral interpretive? Is that the example in your brief? Well, there's an example in our brief where a 19-year-old would... Kisses a 15-year-old. Kisses a 15-year-old for the purposes of arousing sexual gratification. It's an intentional act, but it's not inherently based if he has no knowledge of the age of the victim there. That's not a defense to the statute, but it's not an inherently based act. If he reasonably believes that the person is above the age of the statute, that's prohibited by the statute, and he's engaging in conduct that is not inherently based, it's not a crime of all being moral interpretive. Well, I'm aware of no case that anyone is ever convicted or even died under statute similar as this for kissing a 15-year-old girl
. Well, even if the conduct goes beyond that, short of sexual intercourse, if someone is engaging in sexual activity with another person whom he reasonably believes to be above the age prohibited by the statute, that is not necessarily inherently based activity. But the legislature, Congress, or this case, the state has ordained that when you have any type of conduct with a 15-year-old girl, you are doing so at your peril, and they've just, that's blanket, and they've said, this is criminal, and if you do so, you're doing it at your peril. Haven't they ordained that this conduct, if done, and it can only be done intentionally? Haven't they in effect said that this rises to moral interpretive? Well, I understand that there is a policy there to protect young victims, and I think that's an appropriate policy for criminal statute purposes, but I think in terms of the civil proceeding as to whether someone is deportable or not, I think that you can't abandon the categorical approach. Moral Territu does involve some finding of evil act with evil intent. If I know that the legislature decided that eliminating the men's ray element was something that will tend to protect the young victims, and I think that's a good public policy, but it's not necessarily based on a decision that the acts, that the statute prohibits are all morally interpretu-ness. They just want to throw a wide blanket, a wide umbrella for protection, which is appropriate. I appreciate and commend you for your acknowledging that this conduct has got to be intentional. And what is your best argument to persuade us that given that this is intentional conduct that categorically looking at the statute, a 19-year-old engaging in stroking a 15-year-old's arrest, which is the facts of this case, categorically, does not involve moral Territu. It doesn't involve moral Territu because under the circumstances where the person reasonable believes that the person is above the age of 15, that that does not constitute, and there's no evil intent there. So basically, what the board is doing is saying that a crime of moral Territu no longer has to have an evil intent
. And there may be intent with regard to the activity, but it's not an evil intent because the state of mind with regard to the age of the victim is what makes it evil. And because the statute doesn't require knowledge of the age of the victim, it therefore is not a crime of all the moral purposes. And that is the least culpable conduct pursuant to application of a categorical approach. I believe so, yes. But will you explain to me your argument with respect to Partika? I was on the Partika panel, and I'm not sure I understand your position with regard to that what Partika part of the statute is. It's important for your argument here. Under the statute. Well, this statute is the only one applicable with this argument in this case. Yes. As far as Partika is concerned, there are three, the three elements of this offense, which are important as far as that analysis is concerned, is that it doesn't criminalize, it criminalizes conduct that is not inherently based because, as I said, it criminalizes a normal sexual activity
. It criminalizes in decent contact even where both parties are consenting. And there's no mens-ray element with regard to the age of the victim. So, as using our example, the least culpable conduct here is not without applying the standard that the board applied here. So as you would read Partika, statutory rape could not be considered a crime involved in moral trepitude. Right? The court, I believe, would have to depart from Partika in order to find that. And other circuits have done so, and the board has done so. And I think that in this case, but I don't believe the board has done what? Has departed from, not in this case, but in other cases, they found that statutory rape constitutes a crime involved in moral trepitude. And I think all the other cases- I thought you were saying to the country. No, I believe all the other cases where the board or other circuits have departed from Partika, they've- they've- they've- they've- it's been in the statutory rape context where there's penetrations. But my question is, isn't the import of your position and your argument under Partika that we would be required to regard statutory rape as a crime that does not involve moral trepitude? Yes, applying Partika and the law of this circuit as it is currently constituted
. But as far as, you know, if the court chooses to adopt a standard which allows statutory rape to be included, it's not what's being presented here because it's in decent conduct as I believe. And the statutory rape, there's always penetration or intercourse involved. In- in incest, there is- there is- you know, the consent is not an issue. As consent would not be an issue here, but it's- you know, I think you have to distinguish between the seriousness of the offenses. You can, in fact, in there are cases, at least in various circuits and- and at the BIA, that actually look to conduct to- and it's not clear in those cases whether there was a departure from the Partika category or prohibition or divisible, right? Whether they were divisible statutes here, I don't believe there is a divisible statute, but whether outside of that exception for divisible statutes, whether the court could find, I think if the- if the BIA is- is interpreting that, I think it's- it's disturbing that- that a crime in which there is no mens-rain. I don't know whether in these other statutory rape statutes and in the other cases, whether there is maps in some mens-rain. But I think that- that in- that if- if we depart from Partika and eliminate a mens-rain element for crimes of vulnerable turpitude, I think it gets into some tricky territory. I have nothing further. Thank you very much for having me back on the title of Mr. Mankin
. Excuse me. Good morning, Your Honours. Jeffrey L. Mankin, the United States Department of Justice for the Attorney General. May it please the court. Mr. Meaboub was convicted on stipulated facts of indecent assault on a 15-year-old girl and was sentenced to probation for two years and required to undergo sex offender treatment. I believe that the board's construction of the statute here that- the section on indecent assault, being a crime involving moral turpitude is entitled to show up on different. Mr. Mankin, yes, we apply the categorical approach, right? Yes, we all agree on that. What's wrong with Mr. Henry's hypothetical of the 19-year-old- 20-year-old kissing the 15-year-old? What's wrong with it, Your Honours? It's the least culpable conduct on this stage. The Pennsylvania legislature and the Pennsylvania Supreme Court have spoken to this. States that there is a legitimate societal interest in preventing contact between persons of certain ages. So the state has made the judgment on perhaps a society that this is not conduct in which someone can engage. And I believe that any high school freshman or college freshmen sophomore, male or female, understands that. Well, the argument being made by the petitioner is the exact same argument that was made in the Ninth Circuit in Quaterra versus Salazar, which is exactly the argument here. And Ninth Circuit found that the absence of the men's ray requirement, because of the categorical approach, does not qualify this as a statute dealing with men's ray. If we were to adopt your position, that would be an unquestionably a circuit split, would it not? That's the risk one takes when dealing with the Ninth Circuit. Well, one can actually argue that the Ninth Circuit split with itself in Quaterra Salazar, I believe, but that's perhaps the
. What's wrong with Mr. Henry's hypothetical of the 19-year-old- 20-year-old kissing the 15-year-old? What's wrong with it, Your Honours? It's the least culpable conduct on this stage. The Pennsylvania legislature and the Pennsylvania Supreme Court have spoken to this. States that there is a legitimate societal interest in preventing contact between persons of certain ages. So the state has made the judgment on perhaps a society that this is not conduct in which someone can engage. And I believe that any high school freshman or college freshmen sophomore, male or female, understands that. Well, the argument being made by the petitioner is the exact same argument that was made in the Ninth Circuit in Quaterra versus Salazar, which is exactly the argument here. And Ninth Circuit found that the absence of the men's ray requirement, because of the categorical approach, does not qualify this as a statute dealing with men's ray. If we were to adopt your position, that would be an unquestionably a circuit split, would it not? That's the risk one takes when dealing with the Ninth Circuit. Well, one can actually argue that the Ninth Circuit split with itself in Quaterra Salazar, I believe, but that's perhaps the... Not their latest decision, and I don't think we're here to bash any circuit, and I would take objection of anyone bash the third. So it's a sister circuit, and that's their folding. Well, the point is there are two different decisions from the Ninth Circuit. Well, I would direct the Court to the Grirokoka decision, which came from this Court. It's not published, however, I think it's instructive, because you're dealing with a statute that's almost verbatim the same as the Pennsylvania statute. There, it's a New Jersey statute where the victim is 16 years old, and the actor is not. It's at least four years older, and the activity there was involved intentionally, or touching, or masturbating himself for the purpose of sexually arousing either party. And this Court found that that was a reprehensible act committed with an appreciable level of consciousness citing the Particum decision
... Not their latest decision, and I don't think we're here to bash any circuit, and I would take objection of anyone bash the third. So it's a sister circuit, and that's their folding. Well, the point is there are two different decisions from the Ninth Circuit. Well, I would direct the Court to the Grirokoka decision, which came from this Court. It's not published, however, I think it's instructive, because you're dealing with a statute that's almost verbatim the same as the Pennsylvania statute. There, it's a New Jersey statute where the victim is 16 years old, and the actor is not. It's at least four years older, and the activity there was involved intentionally, or touching, or masturbating himself for the purpose of sexually arousing either party. And this Court found that that was a reprehensible act committed with an appreciable level of consciousness citing the Particum decision. But for some reason, we didn't report it, so we can't look at it for precedent for any decision in this case. It's not intended for that, but I think it's instructive, and I think consistency is important here, because the statutes are so similar. What I would point out is that the Court has stated that there is intent here. The intent is to arouse or gratify sexual desire. So it's not one where there's strict liability because the event happened. The officer acknowledges, and we have given credit for that, that this is something he did, that the officer did intentionally. It wasn't done negligently or whatever, but he says that nevertheless under the categorical approach, it does not rise to the level of moral purpose. So that's the question before it's moral purpose. We're not dealing with intent here. Yes
. But for some reason, we didn't report it, so we can't look at it for precedent for any decision in this case. It's not intended for that, but I think it's instructive, and I think consistency is important here, because the statutes are so similar. What I would point out is that the Court has stated that there is intent here. The intent is to arouse or gratify sexual desire. So it's not one where there's strict liability because the event happened. The officer acknowledges, and we have given credit for that, that this is something he did, that the officer did intentionally. It wasn't done negligently or whatever, but he says that nevertheless under the categorical approach, it does not rise to the level of moral purpose. So that's the question before it's moral purpose. We're not dealing with intent here. Yes. For the purpose of argument anyway, we could see that there's an intent to engage in a conduct. The only question before the Court is whether it's morally turbotudeness. And your Honor, I think this instance and others, the statute that the Pennsylvania legislature enacted makes that distinction. That this is conduct in which people should not engage. That's your job. I suppose as was posited by Judge Smith, a 19-year-old boy were to engage in intimate fraternization with a girl who was 15, but looked to be 18. And of course he did it intentionally, but he did not know that she was under age because he did not know she was under age. He thought she was approximately his age. Would that conduct in your mind be rise to the level of moral turbotud? Again, I would look to how the Pennsylvania legislature structured the statute. And there they have provided an affirmative defense for what's essentially a mistake of fact for lack of a better term
. For the purpose of argument anyway, we could see that there's an intent to engage in a conduct. The only question before the Court is whether it's morally turbotudeness. And your Honor, I think this instance and others, the statute that the Pennsylvania legislature enacted makes that distinction. That this is conduct in which people should not engage. That's your job. I suppose as was posited by Judge Smith, a 19-year-old boy were to engage in intimate fraternization with a girl who was 15, but looked to be 18. And of course he did it intentionally, but he did not know that she was under age because he did not know she was under age. He thought she was approximately his age. Would that conduct in your mind be rise to the level of moral turbotud? Again, I would look to how the Pennsylvania legislature structured the statute. And there they have provided an affirmative defense for what's essentially a mistake of fact for lack of a better term. It's not an element to the offense that the state need to prove, but if an affirmative defense is raised, then the state has the opportunity to rebut that. So the state legislature, as is their progative, has made the distinction there that if you make a reasonable mistake, there is an escape patch there. But barring that a 19-year-old or 35-year-old in this case is not supposed to be sexually involved with someone more than this amount of age. And the statutes of this have been on the books since the start of the democracy. That is what the legislature is entrusted to do. And it is certainly their role to speak for what is and is not morally permissible. I think what the board did in interpreting the INA here is certainly within their progative, and it's what they have been delegated to do. And it's consistent with other decisions, not all of which involve sexual intercourse as commonly understood. This is a case where it flows, it's not inconsistent with the Guiracoga case understanding that that's not published. And this is what the board's job is to do, who is to interpret this statute in the context of the facts and the underlying record
. It's not an element to the offense that the state need to prove, but if an affirmative defense is raised, then the state has the opportunity to rebut that. So the state legislature, as is their progative, has made the distinction there that if you make a reasonable mistake, there is an escape patch there. But barring that a 19-year-old or 35-year-old in this case is not supposed to be sexually involved with someone more than this amount of age. And the statutes of this have been on the books since the start of the democracy. That is what the legislature is entrusted to do. And it is certainly their role to speak for what is and is not morally permissible. I think what the board did in interpreting the INA here is certainly within their progative, and it's what they have been delegated to do. And it's consistent with other decisions, not all of which involve sexual intercourse as commonly understood. This is a case where it flows, it's not inconsistent with the Guiracoga case understanding that that's not published. And this is what the board's job is to do, who is to interpret this statute in the context of the facts and the underlying record. And I think that's what they've properly done here. Are we at liberty at our position here, or are we going to step out of our assigned place by considering a separate defense to a prosecution by a defendant in this type of case? The so-called bailout or safe hearted provisions. When it's only a category of approach that we can look at the statute with. I don't know that it's implicated here because it wasn't raised. I think it needs to be affirmatively raised as a affirmative defense. Yeah, but let's see. The category of approach is on the stand. It's pretty strict on reviewing the crime. We have to take the look at the crime that he was convicted of and looked at it. Is it there's no particular age that was significant for this statute and except the four-year difference
. And I think that's what they've properly done here. Are we at liberty at our position here, or are we going to step out of our assigned place by considering a separate defense to a prosecution by a defendant in this type of case? The so-called bailout or safe hearted provisions. When it's only a category of approach that we can look at the statute with. I don't know that it's implicated here because it wasn't raised. I think it needs to be affirmatively raised as a affirmative defense. Yeah, but let's see. The category of approach is on the stand. It's pretty strict on reviewing the crime. We have to take the look at the crime that he was convicted of and looked at it. Is it there's no particular age that was significant for this statute and except the four-year difference. And look at the least most culpable thing without, as I honestly am looking at any safe harbor or separate defense that a defendant could have imposed. I don't think we get to that point, Your Honor, because if the affirmative defense of mistake, fact, is raised and is persuasive, there's no conviction. So we don't get to the second point of is this person removable for crime involving moral integrity. They don't get to court or they don't get to this point, point two unless there's another reason. But unless there are other areas which I'd be happy to address that the court would like to hear, I would. Well, one thing I like to, how can we assume that Pennsylvania when they enacted this statute decided that this conduct under the least most culpable conduct involved moral and moral integrity? That's what you're asking us to decide. And if we write a decision, a presidential decision, that's what we must say. Well, we're not seeding the ultimate decision to the Pennsylvania Court, but they are interpreting their own statute. And they did say that the statute is specifically tailored to ban older teens and adults from praying upon very young minor victims while recognizing that persons closer in age may be involved in lawful social and sexual misuse. This is the Albert opinion
. And look at the least most culpable thing without, as I honestly am looking at any safe harbor or separate defense that a defendant could have imposed. I don't think we get to that point, Your Honor, because if the affirmative defense of mistake, fact, is raised and is persuasive, there's no conviction. So we don't get to the second point of is this person removable for crime involving moral integrity. They don't get to court or they don't get to this point, point two unless there's another reason. But unless there are other areas which I'd be happy to address that the court would like to hear, I would. Well, one thing I like to, how can we assume that Pennsylvania when they enacted this statute decided that this conduct under the least most culpable conduct involved moral and moral integrity? That's what you're asking us to decide. And if we write a decision, a presidential decision, that's what we must say. Well, we're not seeding the ultimate decision to the Pennsylvania Court, but they are interpreting their own statute. And they did say that the statute is specifically tailored to ban older teens and adults from praying upon very young minor victims while recognizing that persons closer in age may be involved in lawful social and sexual misuse. This is the Albert opinion. Yes, I'm excited to learn our brief fight. I don't hesitate. The policy. Again, unless there are other matters that I can address for the court, I would yield my time. Thank you. Thank you. Thank you much. Mr. Maken and Mr. Henry
. Yes, I'm excited to learn our brief fight. I don't hesitate. The policy. Again, unless there are other matters that I can address for the court, I would yield my time. Thank you. Thank you. Thank you much. Mr. Maken and Mr. Henry. Rebuttal. Just very briefly on rebuttal, I think we need to distinguish between the state's interests and protecting young people from sexual exploitation. In doing that, they outlaw conduct that is not morally turpitudeness or we don't know what their judgment was with regard to that. And I don't think that the court can speculate as to what the legislature's intent was there. And I think the legislature generally, Adam braided these various offenses under the denomination in decent assault. That's derived from the model crimes code, but that's what they called it. So we can't take anything from the use of the word in decent. The use of the word assault. Well, even under the definition of indies in contact, which is, which is, it's defined. Yeah, it is defined
. And I think you have to revert back to that categorical approach and determining whether it encompasses conduct that is broader than simply morally turpitudeness conduct, whether they're also encompasses conduct that is not inherently based. And I, and rather than guess what the legislature intended, I think the court has to go back and apply that part to approach here. Thank you. Thank you very much. Council, thank you for your help for arguments. We will take them into account as we take the matter under advisement. That concludes our arguments for this morning, and I'd ask the clerk to please recess the court