Good morning, everyone. My name is Jorge Artiella. I'm the attorney for the respondent, Ms. Espinal. This is a petition for review from BAA Affirmance of an Immigration Judge, the protection removal order. And the issue, the way Mrs. Spinal sees it, is whether exception to the categorical approach can be added the way a matter of autista has set it up. Mrs. Spinal is a lawful permanent resident. She obtained it through her parents who are both a permanent resident
. Her child, two-year-old child, the United States citizen and our whole family have some sort of status. In 2010, she was convicted of Maryland statues and the visible statue in Maryland as to, is Arson. Why don't you just go right ahead, we will know the record. Why don't you tell us why you think the board is wrong? Why is it wrong because they're adding an exception to the categorical approach, which is not permitted. The categorical approach has the, how do you determine an aggravated felony has the categorical approach tool, the modified categorical approach tool and the exception by, by Nejawan, that looks into the circumstance specific. And that's, and the boutique matter of autista wants to add a new exception by calling an element, which is crucial for a conviction of a jurisdiction element and based on that, to just decide that you can do a wave with an element and pretty much destroy the categorical approach as understood by a Supreme Court. And I think that's the issue that we see here. Why boutista is wrong is because it considers a jurisdiction element something that can just do a wave with. And can you tell us any statute enacted by any state in the nation that has a federal jurisdiction? No, it doesn't, but it doesn't matter
. And that's a question that it's raised through all the circuits, the fifth, the seventh, the eighth, and ninth, that because there's no state statute with a federal jurisdictional statute, it means that no crime, in this case arson, can ever become a, a aggravated felony. And that's not true because an arson could become not under 844i, but it can become a crime violence aggravated felony. And as a matter of fact, matter of moonness, number one, that I mentioned in my brief, the dissent names many crimes that would not qualify, that the dissent claims would not qualify as aggravated pennies under, just because they don't have the jurisdictional element. However, they could qualify as crimes of violence aggravated felonies. They could qualify as crime involved in moral turpitude. They can qualify in removal proceedings for purposes of dissent. Well, under this, is that your answer to the term aggravated felony applies to an offense described in this paragraph, whether in violation of federal or state law, how do you read that? Well, the way you read it is, is that your answer? Well, the way you read that that's a penultimate paragraph is the way the Supreme Court reads it and Lopez Vigilenzales, that it can serve two purposes, but never to swallow the entire aggravated felony rule. They can serve purposes of deciding what an aggravated felony is. The station not swallow violation of state law
. I'm sorry. Would your interpretation swallow violation of state law if you have to have the federal nexus in the state law crime? If you have to have the federal interstate nexus. Yeah, if you have to have an interstate nexus, what do you do with state law, no matter what I just read? How does that ever apply to find the aggravated felony? Yes. It's really easy. You categorize them as aggravated felonies under the crime of violence, wrong. For example, Arson and the matter of Palacios, and I think for circuit also, it in case it gave me, but it's also found that the Arson, state Arson, could qualify as the crime of violence. That's why you don't need to find this Arson as the arson for purposes of aggravated felony. Has to be a crime of violence. No, Arson could be a crime of violence
. The problem with the penultimate census is that it's assuming that if you don't find this type of arson, state Arson, an aggravated felony under 844, I, you will never find an aggravated felony. And it is a matter of fact, they went far as far as to say that no state crimes that have no jurisdictional elements will ever be an aggravated felony. And that's not true. You can find an aggravated felony as a crime of violence. And that's not the end, for example, in nice. So you think for that, for the term violation of state law, violation of state law, here you have to look at another state to understand that not just what this means, but to find the existence of that state law violation, it's not in this statute. It necessarily have to look to other federal statutes on aggravated felons. For purposes of their categorical approach, that's what you say. You have to match the elements with the elements, at least for 844 purposes
. You have to match the elements. In this case, 844, yes, doesn't have the state arson statute, does not have the jurisdictional element. But it looks like the government is, or I'll tease them, sorry, the police is deciding the jurisdictional element. If we say, if we say, we were to decide that the jurisdictional comment is not an element, do you lose? Yes, well, the categorical approach would be destroyed pretty much in that case. Because the understanding of Supreme Court is either use a tool with categorical, modified, categorical, or the other one. That's the answer. But under your approach, as you see it, if that is not an element of the crime, then the argument fails. In this case, yes. Appreciate John
. Yes, thank you very much. Yes, but remember that all these circuits have held... I'm not saying you do, I'm just saying that hybrid. But what I'm saying is that in one footnote that the third circuit said that, if you don't find an arson state arson conviction, inaugurated felony under 844, there's other ways of finding it. It's not the end of the inquiry. There's ways to set it up. So because they set it up in such a tomb, that's so fatal that if you don't find it here, you're never going to find it anywhere, and that's not true
. So there's ways, as the footnote in the third circuit said, it's only a way of stopping what's it called, remove a mandatory removal. But there's other ways that immigration and customs enforcement can go in and charge the person. But to the jurisdictional element, in the camps and the Aledon is dissent, in the camps, actually, well, in the main opinion, and suggested that an element is something that a jury would, if they don't find it, will be hung, and they could not decide on the guilt of someone. They never decided whether the importance or the different, they never differentiated an element based on how you add an adjective to that word, jurisdictional element or not. If it's an element that a jury has to decide, or the fact finder has to decide, then it's an element, and that's important. So why did the Congress put state law in this definitional section of aggravated challenge? And that's probably under state law under, in the definitional section. Why? In this penultimate paragraph of AUSC section 111843. Yes. So what purpose was there to put state law in there? In the penultimate sentence, right? What it says it covers state law
. It's telling you as just, it Lopez and Gonzalez found, not what it's called, Lopez and Gonzalez, Cruz said that you can qualify or state, federal, and foreign law could qualify as a aggravated felony. But then again, it doesn't mean that you have to just do away with a categorical approach. You still have to apply that. It doesn't swallow the entire rule. How would a foreign, an offender of a foreign statute, a non-Nodded States statute? How is that going to work? Yes. And the dissent came out with samples for an alien smuggling. Ismene Ransom demands for hostages in Mexico. Stockpiling explosive materials in France. What? The tell us where you're getting this from
. This is a matter of moon is one. The dissent said, when would ever a foreign statute be an aggravated felony? Many ways. Now, used to be a nice attorney and I used to charge people and try to find different ways of charging aliens. The hostages in Mexico crime of violence. Stockpiling explosive materials crime of violence. Child pornography, potentially abuse of a minor under the generic prong foreign alien smuggling, ACA-MT. I mean, there's different ways that you can be. So the purpose and intent of Congress and charging in alien different ways is not destroyed by not finding arson aggravated felony under 844. There's different ways that you can do it
. And that's otherwise, if they didn't. Also bring a jurisdictional claim as one of the crime of violence, too. Well, the crime of violence, if you would charge, I think, I think, well, you have to look at how it's defined under, I think it's 18. Well, there's two prongs on how you define it. But if it's a state crime or it's a foreign crime, as long as it meets the elements of the crime of violence, the way it's defined under the statute, which I might be mistaken, but I'd Federal statute of ambiguous. It's this one is not a, the statute not ambiguous. It's clear that Congress by defining, defining, aggravated statutes in really specific ways, I haven't. Why is the Senate there? It covers. Federal. Yeah, state federal and foreign. But again, I would go back to Lopez Villagonzales that says, it didn't say that it swallows the entire aggravated felony statute. It just says that you may, at some point, if it falls within the categorical, or if you're using the categorical approach, you find as a negative felony, then nothing escapes. But you still, but still doesn't mean that you don't use the categorical approach. That's what I'm saying. The statute doesn't mean that you take everything. Otherwise, Congress would have set the aggravated felony with just generic crimes. Why bother with all the details on section after section described, then defined in? If we determine that this, then ultimately the section is they call it of the statute is ambiguous. We accord difference then to the VIA's interpretation
. Yeah, state federal and foreign. But again, I would go back to Lopez Villagonzales that says, it didn't say that it swallows the entire aggravated felony statute. It just says that you may, at some point, if it falls within the categorical, or if you're using the categorical approach, you find as a negative felony, then nothing escapes. But you still, but still doesn't mean that you don't use the categorical approach. That's what I'm saying. The statute doesn't mean that you take everything. Otherwise, Congress would have set the aggravated felony with just generic crimes. Why bother with all the details on section after section described, then defined in? If we determine that this, then ultimately the section is they call it of the statute is ambiguous. We accord difference then to the VIA's interpretation. No, and the reason is that, well, the penultimate sentence went back to Castigio every red and the nine circuit. And that's probably ground zero for all this confusion. And Castigio, when they said that there's no other way to interpret the penultimate sentence, because otherwise, no statement. Why do we do if we think it's ambiguous? What do we do to resolve the ambiguity? Well, the way you would do it is, well, in that case, if there's some big, you're just in favor of Mrs. Penel under the rule of law. Why so? Because I think because, well, different judges. You're just in rule of the entity. Well, if there's an ambiguity, why is it in her favor? Well, in that case, it just answers your question. Mrs
. No, and the reason is that, well, the penultimate sentence went back to Castigio every red and the nine circuit. And that's probably ground zero for all this confusion. And Castigio, when they said that there's no other way to interpret the penultimate sentence, because otherwise, no statement. Why do we do if we think it's ambiguous? What do we do to resolve the ambiguity? Well, the way you would do it is, well, in that case, if there's some big, you're just in favor of Mrs. Penel under the rule of law. Why so? Because I think because, well, different judges. You're just in rule of the entity. Well, if there's an ambiguity, why is it in her favor? Well, in that case, it just answers your question. Mrs. Penel does not believe that there's an ambiguity here. I'll tell you that I said if we find out, I'm sure she does. She thinks it's unambiguous in the she reads it. Yes. But I'm asking if it is ambiguous, how do we resolve that ambiguity, so that we know what the statute means so we can apply it? If the way you do it, the way I would do it just go back to Castigio, which is that started all this. The research is poorly done. It's really simple. And then, the question you know, any specifics, what's the general rule you have, her follower, follow to resolve an ambiguity in that statute? If there was an ambiguity, I would then the way I would do it is.
. Penel does not believe that there's an ambiguity here. I'll tell you that I said if we find out, I'm sure she does. She thinks it's unambiguous in the she reads it. Yes. But I'm asking if it is ambiguous, how do we resolve that ambiguity, so that we know what the statute means so we can apply it? If the way you do it, the way I would do it just go back to Castigio, which is that started all this. The research is poorly done. It's really simple. And then, the question you know, any specifics, what's the general rule you have, her follower, follow to resolve an ambiguity in that statute? If there was an ambiguity, I would then the way I would do it is... Would we ordinarily give Chevron a reference to the H-6 interpretation? Oh, okay. Well, I wouldn't in this case just because, based on what Markman is probably not a reasonable way of interpreting Baltista that the Supreme Court, that adding a new categorical approach rule, an exception that is not there. It's only one exception. That's the way I would do it. It's not reasonable because the way they interpret it based on Castigio is just... Okay, so you would say we would not defer to the agency because their interpretation is unreasonable
.. Would we ordinarily give Chevron a reference to the H-6 interpretation? Oh, okay. Well, I wouldn't in this case just because, based on what Markman is probably not a reasonable way of interpreting Baltista that the Supreme Court, that adding a new categorical approach rule, an exception that is not there. It's only one exception. That's the way I would do it. It's not reasonable because the way they interpret it based on Castigio is just... Okay, so you would say we would not defer to the agency because their interpretation is unreasonable. That's correct. Then what will we do? Then based on the... Well, I would suggest that, respectfully just to follow the third circuit, which has a really good... Sorry, has a really good.
. That's correct. Then what will we do? Then based on the... Well, I would suggest that, respectfully just to follow the third circuit, which has a really good... Sorry, has a really good... Developed the words, the plain language, how they found, described in versus the placement within the statue. We would just look at statutory construction rules and we would decide what it means. Yes, yes, that's what I mentioned. Thanks. And I see my time is up in 15 seconds. You reserved for time. Yes, sir. Thank you very much
.. Developed the words, the plain language, how they found, described in versus the placement within the statue. We would just look at statutory construction rules and we would decide what it means. Yes, yes, that's what I mentioned. Thanks. And I see my time is up in 15 seconds. You reserved for time. Yes, sir. Thank you very much. You're welcome. May I please the court, Colin Tucker, for the Attorney General? The facts in this case are... The essential facts, at least, are undisputed. I think it's clear enough what the relevant legal issues are. That being the case, on prepared to move right to questions. You explain why you win under the legal arguments. Explain why you win
. You're welcome. May I please the court, Colin Tucker, for the Attorney General? The facts in this case are... The essential facts, at least, are undisputed. I think it's clear enough what the relevant legal issues are. That being the case, on prepared to move right to questions. You explain why you win under the legal arguments. Explain why you win. You've heard why you don't win. Our best argument, I think your honor, is the penultimate sentence, which states that every offense defined under the aggravated felony statute, is an aggravated felony, whether in violation of federal or state law. Is the statute ambiguous? I don't believe it is, Ron. The government's position is that it is not an ambiguous statute. Following from that, the government's position is also, if the court disagrees, then it should apply. Step two, Chevron, and deferred to the board's interpretation is reasonable. I think that we see one..
. You've heard why you don't win. Our best argument, I think your honor, is the penultimate sentence, which states that every offense defined under the aggravated felony statute, is an aggravated felony, whether in violation of federal or state law. Is the statute ambiguous? I don't believe it is, Ron. The government's position is that it is not an ambiguous statute. Following from that, the government's position is also, if the court disagrees, then it should apply. Step two, Chevron, and deferred to the board's interpretation is reasonable. I think that we see one... Appreciate that you will stand on your brief then. No further questions for you. Thank you very much. In closing, the petition for you should be denied. Thank you. Okay, thank you very much. Anything further? No more questions. Thank you very much. We thank both of you for your argument
. We will have the clerk adjourned court and you will step down the green council