We'll hear argument next this morning in case 14 10 96 Torres versus Lynch. Mr. Gordano? Mr. Chief Justice, I may it please the Court. Congress made a choice. Congress did not choose to make generic arson and aggravated felony. Instead, Congress chose to make federal arson and aggravated felony. And that makes sense. The federal arson statute has a minimum sentence of five years. There are at least 18 states with arson offenses that are classified as misdemeanors. Arizona and Colorado have misdemeanor arson offenses involving damage to property worth less than $100. Congress would not have wanted to make such minor offenses aggravated felonies. We know this because of the statutory scheme. Within the aggravated felony statute, we have generic offenses. Very serious ones like murder and rape. There are no sentence requirements for those very serious generic offenses. However, for the remaining generic offenses that are listed in the aggravated felony statute, they are associated with a sentence of a year or more. Theft offenses, obstruction of justice, burglary, they will require a sentence of a year or more. Also listed with among the generic offenses is crime of violence. There is a requirement of a sentence of a year or more. Arson is a crime of violence. And so Congress would have realized that arson offenses would fall under the crime of violence provision. And for more serious state arson offenses, they would fall under this provision. So that for the minor arson offenses where there is a sentence of less than a year, the individual would not be an aggravated felon and would be eligible for discretionary relief. But what would be the case? If your reading leaves out some very serious arson offenses, say under fire and law or under state law, it could be the worst kind of arson, but there is no commerce cooker. And so it would be left out on your reading
. But on our reading, while it wouldn't fall under the e-provision in the Aggregate Femme statute, these more serious arson offenses, the state and foreign offenses, they would fall under the F crime of violence provision where there is a sentence to a year or more. And under that approach, these less serious arson would not be aggravated felons. And individuals like my client, Mr. Luna, who only received a sentence of one day, they would be eligible to receive cancellation of a woman. Sotomayor, you think that's still clear after our decision in Johnson? Johnson, if I remember correctly, dealt with 16B. He could still be an aggravated felon under 16A. But regardless, what I'm talking about is- maybe, and maybe different in an important respect, but nevertheless, there is some similarity to the residual clause in the Armed Criminal Act. Does it not? Yes. But I'm talking about what Congress intended. When Congress writes a law, it doesn't intend for the Supreme Court to find the language ambiguous and strike it down. So that we should be looking at what Congress's intent was, not whether or not a crime of violence will still be an aggravated felony after Johnson. If there are problems with this, that will be for Congress to fix. I ask you about this statutory language that seems to me to present the greatest problem for your position. Maybe it's not fatal. But what I'm referring to is the provision that says the term applies. So we're looking at whether the State of Fence here is described in the Federal Arson statute. And then there's language that says the term applies to an offense described in this paragraph, whether in violation of Federal or State law. What do you make of that? It can be argued that what that means is that when you have a Federal offense with a jurisdictional provision, you disregard the jurisdictional provision because you're never going to find that in a State provision. The language you're referring to is referred to normally as the penultimate sense. And the penultimate sense merely tells us that state offenses that are described in the aggravated felony provision are aggravated felonies. And in the Board's first matter of Vascularism and Use Disciption, the Board looked at that language and concluded that all that means is that sometimes state offenses could be aggravated felonies, but it didn't require that state offenses always be aggravated felonies. Right. But I mean, the point is, usually when you see language, you know, in interstate commerce, the immediate reaction is, oh, that's Federal jurisdiction as opposed to the State. But here, the one thing we know is they didn't want it to matter. They said, in violation of Federal or State law
. So as I look at, your instinctive reaction is to say, well, then, of course, you don't have to worry about the provision that's in there to limit the offense to Federal offenses. This, this, this language, it doesn't, it doesn't directly address jurisdiction. It just, it's just saying that that certain offenses, certain state offenses can be aggravated felonies, but it's not saying that there's, this provision applies to an entire list of multiple crimes, right? That's correct, Your Honor. And so, from most of those crimes, there's no jurisdictional element at all. That is also correct, yes. So, if you're looking at this as superfluous to not this individual subprovision, one subprovision of many, it's doing a lot of work. Yeah. It's doing a lot of work, because there's a lot of other crimes that qualify under State law, correct? That's correct. I mean, your brief and solicitor general sort of tunnel in on this one provision of many, but I'm wondering why. I'm looking at the entire provision has many State court analogs that don't involve interstate commerce, correct? Yes. So, under our reading of the statute, it, it, it, it, it doesn't render the, the penultimate sentence, it's a, it's a, a nullity, because as, as, as Justice Sotomayor noted, there, there are, are many State provisions that, that will still be aggravated. Because we have all, all, I, I mentioned the generic offenses, all the generic offenses, we'll, we'll be both State and the subprovision. But what, what, what, what, what your theory does is at least create a world in which some things are included and some things are excluded in a way that appears not to make much sense. Now, you've said, no, there is a reason for doing this with Orson to limit it to the Federal Offense, but I mean, there are a lot of things, a lot of things on that list that have jurisdictional hooks in them. So, you would be excluding, in addition to Orson, you would be excluding the child pornography crime. You would be excluding a kidnapping crime, excluding felon and possession, excluding receiving explosives for the purpose of killing somebody. So, you would be excluding all of those. And then, on the other hand, you would be including some things that seem a lot more minor that just happen not to have jurisdictional hooks like operating a gambling establishment. So, you create a world in which the exclusions and the inclusions seem not to match up with anybody's view of, of, of sensible categorization. Well, this, this, the same way that, that, that there's, there's an aggregate of felony provision for Orson and the, the genetics for, for all those things that, that, that you're going to find, there, there are other categories of aggravated felony, which would cover state offenses for those things. Sexual abuse of a minor, crime of violence, and, and even outside the aggravated felony scope, we, we have crimes involving moral perpetuity. So, individuals who commit those crimes on, on, within a state, they would still be removable, and they would still be removable for aggravated felony. So, to, to defendants, one is convicted of the, of the Federal offense of possession of a firearm by a convicted felon, where you have to prove a connection between the firearm and interstate commerce. The second defendant is convicted under an identical state statute, but, of course, there's no need to prove an interstate commerce element. And under your argument, the first would be included, and the second would not
. If the, but the person, the state, the individual would still be removable under the, the, the firearms, your mobility ground. Well, but, that may be discretionary as, as, as mandatory, that, that, that does avoid the question somewhere. You say, oh, well, there's another section, don't worry, that's your answer. But that doesn't seem to me a complete answer to the statutory question that the, just, the Justice of the Leader's question poses. You're making a statute of denonement to yes to the States. Well, you know, the interstate commerce provision, it's, it's an element of, of the statute that, that's required for a conviction. But does it have to be expressed in the statute? Is it not always a required element of a Federal crime? There has to be Federal jurisdiction. So as, as a matter of fact, every Federal crime has some jurisdiction element in it, right? Yes, but, but this is- Whether it's expressed in the, in the text of the statute or not, the statute's invalid if there's no Federal hook. But, but at the same time in, in, in, in Federal criminal law, but, but, but, but, you're, you're not limited, you're just limiting it to the jurisdictional element recited in the statute, right? That seems to me a little illogical, let's. But in this, this Court always requires the jurisdictional element for the conviction. Jones versus United States, they was, they was a conviction under 18, you would see 844i, and this Court overturned that, that conviction because the interstate commerce element wasn't met. So you, you can't have the Federal conviction without the interstate commerce element. But, but, but it doesn't have to be recited in the statute. I mean, if a defendant could come in and challenge his conviction on the ground that there, there was no basis on which the Federal government could, could have reached my conduct. It was not interstate commerce. There was, it was not pursuant to us treaty or anything else. It, it doesn't that make the Federal jurisdictional hook, and a necessary element of any Federal crime. I mean, it, yes, the Federal jurisdiction element is, is there a climate for a conviction? And what, but, but, but, but, but, but, you're not arguing that. You're, you're saying only when it's recited in the statute, right? I, I'm not following the distinction that you're making. On those other, the ones that are not stated in the statute, it's preserved. It doesn't have to be proven to a jury beyond a reasonable doubt, correct? Okay, correct. Yeah. Could I have, I'm going to sound like my colleague Justice Breyer. Okay. I became interested in the argument of the National Association of Criminal Lawyers
. And basically their position is that the definition here that says an offense described in 844, what, of that title relating to explosive material offenses. And they argue that, that takes arson out of this section. Why, I don't see that argument in your brief. Are you disavowing it? And if so, why? We're not disavowing it. And I think that that does show support our position in that. It shows how easy it is when you have broad language that says eliminate, eliminate elements as the government says that it could be any element, it could be any element that gets eliminated. They're saying it's jurisdiction and the Amicus brief. It says, it says arson. I'm not, I'm not even on your point. Okay. All right. Did you read the National Association? I, I, I, I am familiar with, with, all right. They don't argue that point at all. Okay. They're just saying that this, this is not covered by, the fire, the arson is not covered by the statute at all, by the enhancement at, by the statute at all, except under the arson provision that requires a sentence for you. That's their argument. Get out of that interstate or anything else. So tell me why you didn't make that argument. We, we, we didn't make that argument because we didn't think about their brief came, came after ours and, and we don't necessarily just disagree. With, with their provision, with, with their argument, we, we just didn't make it in our brief. But, but it does support our, our position in, in, as I was saying earlier, that, that, you know, the, the statute says described in, okay, and the government is saying described in tells us that we, we, we can eliminate elements. But what's the criteria? How do you know what, what, what element gets, gets eliminated? And that, that example shows that, that it, it, it may not necessarily be the, the, the jurisdictional element, and, and it could just as well be the arson element. And, and, yeah, why, why does it have to be the jurisdictional element that gets eliminated? It could just, it's still the, the arson element. The, the sole purpose of it is to, and, and able federal authority to be brought to bear on the problem, as no relationship to the conduct, the arson is the same. The only reason for the jurisdictional provision is to authorize federal action, and nothing to do with the conduct involved in the crime itself
. So, I think the jurisdictional provision is not like any other element. It's, therefore, one purpose only, which is to authorize federal action. On page 24 of our brief, we cite three provisions from Title 18, two from 18 U.S.C. Section 3142, and the third one is 18 U.S.C. Section 5032. And these three provisions have language, referring to state offenses, if circumstances, giving rise to federal jurisdiction, had existed. That, that is very clear language, removing the jurisdictional element or applying a state offense to, to a federal authority. I agree with you, that's clearer, but it still doesn't say if the jurisdictional element why not some other element, because jurisdictional elements are unique. But the important point about those three federal statutes is that Congress is saying that if they want jurisdictional elements to be ignored, they're going to say so, and they're going to say so with clear language, much clearer language, than the penultimate sentence, or described in, and Congress didn't do that here. I mean, basically, we're asking to apply the full language of the statute, and the government is saying, omit things. And to omit things, you need clear language. But your assumption is that there, an element is an element, is an element, whether it's substantive or jurisdictional, and that's not the way our cases have treated them, or the general. I mean, you don't need to rely on it for everything, with a model penal code, draws a precise distinction between matters relating to the harm or evil sought to be prevented, and facts that relate to jurisdiction, venue, or limitations. But still, the jurisdictional element is required for the conviction. You cannot have the conviction. No, I know. But my point is it's required for conviction, but that doesn't necessarily mean that you would include the jurisdictional element when you're saying, well, what does the crime? What is the harm or evil sought to be prevented? And in a statute like this, it seems to me that that's what Congress is concerned about. Not the technical elements like, for example, venue. I mean, is venue an element, if it's listed under the criminal provision? Well, sure, it's an element that could have to be proved depending on the terms of the statute, but that has nothing to do with the harm or evil sought to be prevented. Go back to the United States, there's a Jones again. I mean, this Court said that Congress didn't intend to make all arson, all arson's federal offenses, and by the same token, but that if Congress didn't intend to make all all state arson's federal offenses, they shouldn't have intended to make all state arson's removable offenses or aggravated felonies
. But they wanted to make arson's offenses whether in violation of federal or state law. But it's described in this paragraph. So it's still the language of the Pultimate Sence is still requiring all the elements to be met. It's described in. It has to be described in. And the 844i has that jurisdictional element, and there's nothing about the Pultimate Sence that indicates that any element of that offense can be ignored. Under the categorical approach, this Court has regularly compared elements of offenses, and we've never had a categorical approach case where this Court has said an element can be excluded in the categorical analysis. And we've not addressed this question in the context of the categorical application of the categorical approach. I don't just mean it's never come up in sort of my point. But still in light of the fact that Congress is aware that this Court utilizes the categorical approach. Congress would have used strong language or clearer language if there was going to be a modification of the categorical, I mean, this would be a major deviation from the way that the categorical approach is applied. This is along the same lines as the Chief Justice's question. Tell me if I'm wrong, the jurisdictional elements are different in one important way, which is that we don't require mens rea as to jurisdictional elements. So that's a pretty critical distinction that we've made suggesting that jurisdictional elements are different. You know, you have to prove them, but you don't have to, the defendant doesn't have to have mens rea with respect to them. Why doesn't that suggest that there is a real distinction here between jurisdictional elements and substantive elements that can come into play in this context as well? Yes. This is what Congress shows. Congress shows statutory provision with jurisdictional elements, I think, to be presumed that Congress knew what it was doing and it meant. But the other men's rea example is also an example where we're basically stating what we think Congress meant. And we're saying, you know, Congress could not have meant to require mens rea for a jurisdictional element. Notwithstanding that there's not language in a statute that says, and there shall be no mens rea for a jurisdictional element, so why not the same here? Well, even if it's different, okay? You're going to say jurisdiction is different. It doesn't stop it from being a requirement. It may be a different element, it may be a different kind of requirement, but it's still a requirement. And so you can't just wish it away. The language, the language in the statute isn't there to say circumstances getting rise to federal jurisdiction had existed
. Congress didn't put the language in the statute that was necessary to ignore the playing language of the statute, which is that Congress wanted convictions under 18 U.S. 84i to be aggravated felonies. The- You could perhaps, maybe as we treated the $10,000 in the- Neashelon case. Right. And say, yeah, Congress did mean to pick up the definition, the jurisdictional part, but since no State explosives law, we'll have that in the language. You could, the government could, if it wanted, prove it at the- prove that it was interstate commiss related at the deportation hearing. That's what we did with the $10,000, isn't it? Yes. The reason really is pretty similar here. The reason is there just isn't a, you know, there isn't a theft statute in the States which have a $10,000 thing in it, and so it didn't make really sense to think Congress wanted to exclude all those. And so here, there's a big thing explosives. I mean, that's quite a major problem, trying to have an explosive law of a building. And if anything, counts as an aggravated felony. It's that. But there is this jurisdictional problem. What do you think about that, I'll just- Sotomayor, I think is a very different situation. The jewellys don't want specific provision. The $10,000 requirement just, just affected that single provision. And in that case, there was pretty much a- a- a- a novelty situation where that specific provision would have been rendered an annulity. Here, the penultimate sentence relates to the- the entire aggravated felony provision. So might- might not- My reading of the statute does not have the ultimate sense of what? The ultimate sense of 1101 A43. The language the term applies to an offense described in this paragraph, whether in violation of Federal or State law, the board in its decisions calls that the penultimate sentence. That's why I keep referring to it as that. I just need to read it. Okay
. It's 1101-43. A43 is in the R-joint appendix at page 4a. What about the respect that we owe to the PIA for their interpretation? The board should not be owed any, any, any, any, difference under, under two different theories. One is that the criminal entity rule should apply. The second is that the longstanding principle of construing lingering ambiguities and deportation statutes in favor of the alien should also be applied. And with regard to those rules, Chevron is not a rubber stamp. Chevron tells us that there are certain circumstances when, when, when, when, deference should be applied towards decisions. And if, if those circumstances are not that, then the board is, is not supposed to be given, deference. And in, in, in this particular situation, both of these principles that I've just mentioned, there's statutory tools of construction. And statutory tools of construction are supposed to be applied at, at Chevron Step 1. And therefore, the agency should not be owed deference. Unless there are any further questions, I've reserved for battle time. Thank you, Council. Mr. Goldberg? Mr. Chief Justice, and may it please the Court. Section 1101A43 indicates that violations of state and foreign law should be considered aggravated felonies, along with violations of Federal law. It was enacted against the backdrop of multiple doctrines across multiple areas of the law in which a jurisdictional element drops away when a Federal crime is being compared to a state before it's done. For example, as you gave me in your brief, either it's clear explicitly that jurisdiction was excluded by the statute, or the nature of the offense gives jurisdiction, or the assimilated crimes act, it makes sense because the whole purpose is that it's that Federal, that a state law is going to apply when there isn't a Federal law. So applying jurisdiction makes no sense. But so I don't take much from your arguments, which is the fact that it's that it drops away in other sections, Congress didn't just say it dropped away here. Well, our point isn't that each one of those is exactly analogous. There are so many different places where it drops away, and that that's very telling. And of course, the purpose of this statute is to capture people who are particularly dangerous. We shouldn't be able to make it
. I thought I agreed with that when I came in, and then I thought my goodness, of course, it's an explosive crime, my God blowing up a building or a person. If anything's an aggravated felony, that must be. Then the first words out of his mouth, your friend's mouth, were, have no fear. Read on, because there is a section that makes it an aggravated felony to commit a crime of violence, and a crime of violence is very broadly defined. So any human being who commits an explosive violation, where that's a state law violation, will fall within the definition of aggravated felony because they will have committed a crime of violence. So now, if that's right, I'm left with only half the problem I thought I was left with, and the half I'm still left with, is it we follow up with the law? So your interpretation, what we will suddenly do is put into the category aggravated felony, which forbids the Attorney General to exercise her discretion and keep the person here even when she wants to. But the mirror case isn't a problem because, after all, she doesn't have to keep him here. All right? We put in every tax fraud state, every racketeering gambling, I mean, you know the list, and it includes an awful lot of trivial stuff. So now I have removing the Attorney General's discretion when she wants to keep the thing here, keep the person here. In a whole lot of trivial stuff, if I accept your definition, and if I accept theirs, I don't have the problem I thought I had, which was that people who commit very serious explosive crimes are not in the category aggravated. So what is the answer to that? I didn't think about it, till I heard his first argument. I disagree with, I think both halves of that, and let me start by talking about why I think it remains true despite the crime of violence, provision, and other parts of the aggravated felony provision that Petitioner's approach is radically underinclusive. First of all, it's important that we're not just talking about arson here, we're talking about all of the different described in provisions where there is a Federal jurisdictional element, and so there are many things that it is clear would never be picked up by other parts of the aggravated felony in the front of me, thanks to my law clerk, and I couldn't find anything on that list, which either wouldn't fit within crime of violence or would be so terrible to leave out. Well, there are a couple different examples, and I also think it's true, and I don't want to leave this on the table, that not all arson's would qualify as crimes of violence, so I want to get to that as well. But the things that would be left out and that would not be picked up by other parts of the aggravated felony provision under Petitioner's view would be a number of really serious child pornography offenses if they were prosecuted by a state or by a foreign sovereign, including possessing child pornography, transporting child pornography, putting out a notice saying that you want to receive or exchange child pornography. None of that would be picked up by anything else in the provision. Petitioner says in his brief that the sexual abuse of a minor, generic offense would pick that up, but it wouldn't pick up any of those things that I just described, although it might pick up some kinds of child pornography offenses. Gun possession offenses, being a felon in possession of a firearm, being a fugitive from justice in possession of a firearm. A lot of really serious gun possession offenses also, if prosecuted by a state or prosecuted by a foreign sovereign, would not be picked up, and Petitioner actually doesn't contend otherwise. So it is an under-inclusive approach, and that's true even with respect to Arson, because under the crime of violence provision, that has to involve use of force against the person or property of another. A number of state arson offenses would cover arson against your own property, and this is a categorical approach. So if a- I don't understand what your argument is. We have to interpret this thing to be as expansive as possible. No, it's not. I mean, you know, if Congress wanted to cover all those things, it could have used the language it used elsewhere, which says, you know, except for the jurisdiction element, but it didn't say that
. What do you do about the Federal statute that makes Arson of a Federal building a crime? Well, not to say- Does that mean that all state arson statutes are picked up, whether it's of a Federal building or of the corner grocery store? No, I think you'd have to engage in an analysis at that point about whether that element was a purely jurisdictional element or whether it had some substantive force to it. That's not an analysis. That's the key. Well, I think the key is- If the board were going to undertake that analysis, which it hasn't done with respect to anything besides interstate commerce jurisdictional elements, which are classic jurisdictional elements, but if the board were going to undertake that analysis, I think it would look to the model penal code definition that the Chief Justice pointed to earlier, and that is the distinction between the harm or evil sought to be prevented and the legislature's power, jurisdictional power, to regulate that harm or evil. And in the case that you mentioned, I think that might very well be a substantive element because Congress could be making a determination that there's something particularly pernicious, particularly culpable, particularly in need of deterrence about Arson with respect to Federal property, which Congress really especially wants to protect. But I don't think you can say that about the interstate commerce jurisdictional element, which the Court has recognized as a term of art. There's this Alito. Thank you. Following up on that. But why isn't that true here in light of the Court's decision in Jones? In the Court, in the Court, didn't the Court's decision in Jones interpret the reference to interstate commerce to be something more than just a jurisdictional hook, but rather a substantive requirement that limited the scope of this particular statute to more severe instances of examples of the crime? I don't think so, because the analysis in Jones was against the backdrop of a constitutional avoidance principle. And the Court said there might very well have been constitutional problems with interpreting the statute more broadly. I think the best comparison is between Jones and Russell. And you can see there that the interstate commerce element is not doing substantive work. Well, I don't know why you say that. If it has to have substantive work, otherwise it wouldn't be in the statute. Well, it is picking a crime that only Congress would prosecute, which is following up on Justice Alito's point, substantive, because it's more serious. It had, we have to protect people who are affected from interstate travel or that effects interstate travel. You could even following the model pinnacle. You could still call this substantive. I don't think so. And again, I think the comparison between Jones and Russell makes this point. In Russell, the Court said that the offense was something that could be prosecuted by the Federal Government because it was arson of a rental property, which was used in interstate commerce. In Jones, it was arson against a private non-rental property. And that was said to fall outside the scope of Section 844i. But I don't think you can say that there is something particularly furnishous or culpable about arson against a rental property versus arson of a non-rental property. I think what's not going to be. When do I have to subject the Federal Court to this new distinction between a jurisdiction element that's substantive and one that isn't substantive to just jurisdictional? Why should I do that? I mean, if it's an element, it's an element. And if Congress really wants to eliminate the jurisdictional element, it can say so the way it did in some other statutes. And if it doesn't say that, you know, don't bother me. Isn't that a sensible way to handle this? I don't think so, Your Honor. I don't think it's possible to draw a negative inference from those other statutes. Congress obviously can get at the same meaning using different forms of words in different statutes in the U.S. code. And what's very important about the statutes that the positioner has pointed to you that expressly say that the jurisdictional element should be taken out is that they don't have an analog to the penultimate sentence in this case, which shows Congress's intent in the aggravated felony provision that state offenses and foreign offenses count along with federal offenses as aggravated felonies. And so I think once you've got that penultimate sentence in there, it may very well be that Congress no longer feels any need to put in language that's equivalent to the language in those other statutes. Is that really Ms. Goldenberg, the only textual basis for your position? You know, your brief does a good deal about the difference between described and defined, which the petitioner has suggested is not a very good distinction because the defined only refers to actual statutory definitions. So are you still relying on that? Are you relying on anything else in the statutory text beyond the penultimate sentence? Or is the penultimate sentence really the statutory basis for your argument? No, we're certainly still relying on the described in language and the distinction between that language and other language that Congress chose to use elsewhere in the aggravated felony provision. It's just that we think that it's important that when you look at the meaning of described in, it be read in light of the penultimate sentence, in light of the purpose of this provision, in light of the irrational patchwork that would be created by petitioners' views. So I think all those things inform how you would understand described in. But with respect to the question of whether defined in in this provision was just used to refer to dictionary definition type statutory provisions, I think that that is true. As a descriptive matter, there are only a couple defined in provisions of the aggravated felony statute and they do refer to other statutes that say the word X means Y. But that's not true throughout the U.S. Code, which was petitioner's original submission. There are lots of places where Congress has used defined in to refer to offenses and to mean exactly what follows but nothing else. And one very telling example is Section 844N, which actually refers to Section 844i, the provisioned issue in this case by talking about offenses defined in this chapter. So Congress had at its fingertips language that it could have used to refer to these federal criminal provisions if all it had meant to do was to say, look, we want to use exactly what comes after this and nothing else. And there's actually another distinction as well as the defined in language in the statute
. I think what's not going to be. When do I have to subject the Federal Court to this new distinction between a jurisdiction element that's substantive and one that isn't substantive to just jurisdictional? Why should I do that? I mean, if it's an element, it's an element. And if Congress really wants to eliminate the jurisdictional element, it can say so the way it did in some other statutes. And if it doesn't say that, you know, don't bother me. Isn't that a sensible way to handle this? I don't think so, Your Honor. I don't think it's possible to draw a negative inference from those other statutes. Congress obviously can get at the same meaning using different forms of words in different statutes in the U.S. code. And what's very important about the statutes that the positioner has pointed to you that expressly say that the jurisdictional element should be taken out is that they don't have an analog to the penultimate sentence in this case, which shows Congress's intent in the aggravated felony provision that state offenses and foreign offenses count along with federal offenses as aggravated felonies. And so I think once you've got that penultimate sentence in there, it may very well be that Congress no longer feels any need to put in language that's equivalent to the language in those other statutes. Is that really Ms. Goldenberg, the only textual basis for your position? You know, your brief does a good deal about the difference between described and defined, which the petitioner has suggested is not a very good distinction because the defined only refers to actual statutory definitions. So are you still relying on that? Are you relying on anything else in the statutory text beyond the penultimate sentence? Or is the penultimate sentence really the statutory basis for your argument? No, we're certainly still relying on the described in language and the distinction between that language and other language that Congress chose to use elsewhere in the aggravated felony provision. It's just that we think that it's important that when you look at the meaning of described in, it be read in light of the penultimate sentence, in light of the purpose of this provision, in light of the irrational patchwork that would be created by petitioners' views. So I think all those things inform how you would understand described in. But with respect to the question of whether defined in in this provision was just used to refer to dictionary definition type statutory provisions, I think that that is true. As a descriptive matter, there are only a couple defined in provisions of the aggravated felony statute and they do refer to other statutes that say the word X means Y. But that's not true throughout the U.S. Code, which was petitioner's original submission. There are lots of places where Congress has used defined in to refer to offenses and to mean exactly what follows but nothing else. And one very telling example is Section 844N, which actually refers to Section 844i, the provisioned issue in this case by talking about offenses defined in this chapter. So Congress had at its fingertips language that it could have used to refer to these federal criminal provisions if all it had meant to do was to say, look, we want to use exactly what comes after this and nothing else. And there's actually another distinction as well as the defined in language in the statute. And that's in subsection P, which is found on page 4a of the appendix to the government's brief. Their Congress uses the words in violation of, an offense which is in violation of a particular federal statute. The upshot of petitioner's position is that any time there's an interstate commerce jurisdictional element in any of the federal provisions that are referred to, only a violation of the federal statute, only a federal criminal prosecution and conviction will count as an aggravated felony. Because no state crime, no foreign crime is ever going to have interstate commerce as an element. If that's what Congress had meant, if it had meant to restrict it to violations of that federal statute, then again, it had language at its fingertips that it has used elsewhere in this provision that would have allowed it to do that. And there's one other aspect of the statutory tax that I'd like to mention. And that's just a particular example of a place where petitioners reading doesn't make sense in a particular context in the statute. And that subsection of J, which is on page 2a of the appendix to our brief. And that's offenses described in several federal provisions, one of which is RICO. RICO has in it interstate commerce elements. And then at the end of the provision, there is one of the limitations that Congress puts in sometimes. And the limitation is that the offense has to be punishable by more than one year. Again, under petitioner's view, only actual violations of the federal RICO statute and an actual federal prosecution and conviction under the federal RICO statute would ever count under subsection J as an aggravated felony. But if that were true, there would be no reason for Congress to have included that last clause there, because federal RICO convictions are always punishable by more than a year. It says so right in the RICO statute, they're punishable by up to 20 years. So it must be. I don't understand what you say again, right? Okay. All right. So it's subsection J. Got it. And it is an offense described and I'm just referring to the first federal statute that's listed there. It's page 2A of the appendix to the government's brief. And I should say when this provision went into the aggravated felony statute, it was only RICO and not these other statutes that follow and subsection J that were listed. So it says an offense described in section 1962 of Title 18, which is RICO, for which a sentence of one year imprisonment or more may be imposed. And what I'm saying is you can always impose a sentence of one year or more as an abstract matter when you have convicted somebody of a federal RICO offense
. And that's in subsection P, which is found on page 4a of the appendix to the government's brief. Their Congress uses the words in violation of, an offense which is in violation of a particular federal statute. The upshot of petitioner's position is that any time there's an interstate commerce jurisdictional element in any of the federal provisions that are referred to, only a violation of the federal statute, only a federal criminal prosecution and conviction will count as an aggravated felony. Because no state crime, no foreign crime is ever going to have interstate commerce as an element. If that's what Congress had meant, if it had meant to restrict it to violations of that federal statute, then again, it had language at its fingertips that it has used elsewhere in this provision that would have allowed it to do that. And there's one other aspect of the statutory tax that I'd like to mention. And that's just a particular example of a place where petitioners reading doesn't make sense in a particular context in the statute. And that subsection of J, which is on page 2a of the appendix to our brief. And that's offenses described in several federal provisions, one of which is RICO. RICO has in it interstate commerce elements. And then at the end of the provision, there is one of the limitations that Congress puts in sometimes. And the limitation is that the offense has to be punishable by more than one year. Again, under petitioner's view, only actual violations of the federal RICO statute and an actual federal prosecution and conviction under the federal RICO statute would ever count under subsection J as an aggravated felony. But if that were true, there would be no reason for Congress to have included that last clause there, because federal RICO convictions are always punishable by more than a year. It says so right in the RICO statute, they're punishable by up to 20 years. So it must be. I don't understand what you say again, right? Okay. All right. So it's subsection J. Got it. And it is an offense described and I'm just referring to the first federal statute that's listed there. It's page 2A of the appendix to the government's brief. And I should say when this provision went into the aggravated felony statute, it was only RICO and not these other statutes that follow and subsection J that were listed. So it says an offense described in section 1962 of Title 18, which is RICO, for which a sentence of one year imprisonment or more may be imposed. And what I'm saying is you can always impose a sentence of one year or more as an abstract matter when you have convicted somebody of a federal RICO offense. And so it can't be that just because there's an interstate commerce element in the federal RICO statute that, therefore, state and foreign convictions all drop away and the only time someone is an aggravated felon under J is if they've been convicted of a federal RICO crime. If that were right, then there would have been no need for Congress to include that language at the end. I see. That's there clearly because Congress wanted to pick up state and foreign versions of the crime and to then drop away, as Congress does, sometimes the sort of more minor versions of those crimes where there are different sentencing and penalty schemes in place. Of course, he's not arguing that all federal jurisdictional requirements have to be one of the elements. He's only saying that where the statute itself recites the jurisdictional law. Does RICO do that? What does RICO say? Yes. RICO does recite an interstate commerce element. It does. The basic point is I counted, you know, I made an effort to count these. And except your argument, there are about 10 of these sections that, you know, you couldn't use that as a limitation. But if I look at those 10 individually, I will discover that I, for Congress, did want to pick up state crimes there, or they don't use exactly jurisdictional language like evade attacks imposed onto this title. Yes. And there isn't really going to be the anomaly I thought it was. That's your point. Yes. That's one of my points, certainly. There are, I think, 17 different places in the aggravated felony provision if you could actually each of its little subsections. Some of them have two or three subsections. And by my count, about nine of them have an interstate commerce jurisdictional element. And so it's not that the penultimate sentence would be superfluous on Petitioner's view, but it would start doing work in this very odd way for only about half of the aggravated felony provision. And that would just be a very strange, back to where I'm going. It wouldn't be strange if those were things that covered offenses that it makes sense not to want to put in to the definition. And I don't think that some of them did, but.
. And so it can't be that just because there's an interstate commerce element in the federal RICO statute that, therefore, state and foreign convictions all drop away and the only time someone is an aggravated felon under J is if they've been convicted of a federal RICO crime. If that were right, then there would have been no need for Congress to include that language at the end. I see. That's there clearly because Congress wanted to pick up state and foreign versions of the crime and to then drop away, as Congress does, sometimes the sort of more minor versions of those crimes where there are different sentencing and penalty schemes in place. Of course, he's not arguing that all federal jurisdictional requirements have to be one of the elements. He's only saying that where the statute itself recites the jurisdictional law. Does RICO do that? What does RICO say? Yes. RICO does recite an interstate commerce element. It does. The basic point is I counted, you know, I made an effort to count these. And except your argument, there are about 10 of these sections that, you know, you couldn't use that as a limitation. But if I look at those 10 individually, I will discover that I, for Congress, did want to pick up state crimes there, or they don't use exactly jurisdictional language like evade attacks imposed onto this title. Yes. And there isn't really going to be the anomaly I thought it was. That's your point. Yes. That's one of my points, certainly. There are, I think, 17 different places in the aggravated felony provision if you could actually each of its little subsections. Some of them have two or three subsections. And by my count, about nine of them have an interstate commerce jurisdictional element. And so it's not that the penultimate sentence would be superfluous on Petitioner's view, but it would start doing work in this very odd way for only about half of the aggravated felony provision. And that would just be a very strange, back to where I'm going. It wouldn't be strange if those were things that covered offenses that it makes sense not to want to put in to the definition. And I don't think that some of them did, but... Well, no, I think... ...tax, for example, the fraud tax fraud, but it uses different language. Yes. No, I think as to many of them, as with respect to the arson offense issue here, it would make sense to pick up state, and also particularly foreign crimes. I don't want foreign crimes to get left out of this discussion because I think it's very important. It's very important to Congress when dealing with the kinds of people who are going to be covered by the aggravated felony provision that if they had committed a sufficiently serious foreign crime, that that would get picked up. And of course, foreign crimes are never going to have an interstate commerce jurisdictional element in them. How do you deal with his lack of uniformity argument that is some crimes will under State law, the same conduct will be labeled by some states of felony, other states of misdemeanant, and you get a lot of these lesser type offenses swept up into the provision that doesn't allow for cancellation of removal. That's not a feature of the board's interpretation in this case. That's just a feature of the aggravated felony provision that it sometimes sweeps in things that the state's characterized as misdemeanors, and that's very well recognized both by the board and by the courts of appeals. This is a federal term of art aggravated felony, which is used to show that certain immigration consequences should attach to someone, and so the fact that a state idiosyncratically or for its own reasons attaches a particularly low penalty to something that's set forth here is well recognized not to be a reason to get out of the aggravated felony provision. But I believe that Mr. Guadano's point was that this is a reason why Congress may have used the language that it did rather than say just arson, right, that it wanted, but it understood that there was a wealth of very minor arson crimes out there in the States that it wanted to exclude those and the way it excluded those was essentially by saying, no, it's got to be the federal offense. I think that would be, again, a sort of strange roundabout way to exclude them and to move it back through the crime of violence provision. It would be a lot of work. What Congress could much more easily have done is just to put a limitation right there in E1 as it did in many other provisions that said you have to have a crime that for which you're imprisoned for at least a year or a certain value of property has to be affected. And Congress did that not only when it was describing, sorry, generic aggravated felonies, but also it did it in some of the described in sections like Subsection J that I was talking about earlier. So that I think would be the way that Congress would have approached it. At the same time, I don't think there's anything at all strange in thinking that Congress didn't want to exclude even things that are more minor as arson's go on the scale of arson's
.. Well, no, I think... ...tax, for example, the fraud tax fraud, but it uses different language. Yes. No, I think as to many of them, as with respect to the arson offense issue here, it would make sense to pick up state, and also particularly foreign crimes. I don't want foreign crimes to get left out of this discussion because I think it's very important. It's very important to Congress when dealing with the kinds of people who are going to be covered by the aggravated felony provision that if they had committed a sufficiently serious foreign crime, that that would get picked up. And of course, foreign crimes are never going to have an interstate commerce jurisdictional element in them. How do you deal with his lack of uniformity argument that is some crimes will under State law, the same conduct will be labeled by some states of felony, other states of misdemeanant, and you get a lot of these lesser type offenses swept up into the provision that doesn't allow for cancellation of removal. That's not a feature of the board's interpretation in this case. That's just a feature of the aggravated felony provision that it sometimes sweeps in things that the state's characterized as misdemeanors, and that's very well recognized both by the board and by the courts of appeals. This is a federal term of art aggravated felony, which is used to show that certain immigration consequences should attach to someone, and so the fact that a state idiosyncratically or for its own reasons attaches a particularly low penalty to something that's set forth here is well recognized not to be a reason to get out of the aggravated felony provision. But I believe that Mr. Guadano's point was that this is a reason why Congress may have used the language that it did rather than say just arson, right, that it wanted, but it understood that there was a wealth of very minor arson crimes out there in the States that it wanted to exclude those and the way it excluded those was essentially by saying, no, it's got to be the federal offense. I think that would be, again, a sort of strange roundabout way to exclude them and to move it back through the crime of violence provision. It would be a lot of work. What Congress could much more easily have done is just to put a limitation right there in E1 as it did in many other provisions that said you have to have a crime that for which you're imprisoned for at least a year or a certain value of property has to be affected. And Congress did that not only when it was describing, sorry, generic aggravated felonies, but also it did it in some of the described in sections like Subsection J that I was talking about earlier. So that I think would be the way that Congress would have approached it. At the same time, I don't think there's anything at all strange in thinking that Congress didn't want to exclude even things that are more minor as arson's go on the scale of arson's. On the view that arson is a really serious crime. It is aggravated in every sense of that word. It doesn't have to be. But this one wasn't. He's crime. He got one day jail time and five years of probation. So it falls on the lesser side. Given your argument, is there any way that a person in his situation could get a cancellation of removal? No. So he's just stuck. He said, absolute. Even when it's a one day jail time, a lesser crime, there's no, he really locked into, no means to obtain cancellation of removal. That's right that he can't obtain cancellation of removal. And that's consistent with Congress's intent in putting the aggravated felony provision into place, which was to constrain the Attorney General's discretion and to make it so that the Attorney General was locked into certain conclusions. And that was because Congress thought that the way that the whole cancellation of removal process was working before the aggravated felony provision went into place was, it wasn't working well. Too many people were being allowed to stay. Too many people were having their removal canceled. And Congress expressed very clearly in legislative history that it didn't like that. And it wanted to constrain the Attorney General's discretion. I also think not to- You've got to come back to the- I was just going to say, of course, the Attorney General made decide not to subject the alien to removal in the first place, right? That's true, yes, although aggravated felony is a ground for removal. But I also, I don't want to lose sight of the fact that just because this petitioner sentence was one day and five years' appropriation does not mean that he committed a minor of crime of some kind. We actually don't know what the conduct was. It's not in the record of the amount. But the only thing you've been able to think of, my guess is that gets around his argument that arson and explosives will be covered by the crime of violence. Is it what if a person sets fire to his own property? Now, when would a person set fire to his own property? When he wants to commit fraud? And here we have a provision that puts fraud within it. And moreover, it has the limitation of $10,000
. On the view that arson is a really serious crime. It is aggravated in every sense of that word. It doesn't have to be. But this one wasn't. He's crime. He got one day jail time and five years of probation. So it falls on the lesser side. Given your argument, is there any way that a person in his situation could get a cancellation of removal? No. So he's just stuck. He said, absolute. Even when it's a one day jail time, a lesser crime, there's no, he really locked into, no means to obtain cancellation of removal. That's right that he can't obtain cancellation of removal. And that's consistent with Congress's intent in putting the aggravated felony provision into place, which was to constrain the Attorney General's discretion and to make it so that the Attorney General was locked into certain conclusions. And that was because Congress thought that the way that the whole cancellation of removal process was working before the aggravated felony provision went into place was, it wasn't working well. Too many people were being allowed to stay. Too many people were having their removal canceled. And Congress expressed very clearly in legislative history that it didn't like that. And it wanted to constrain the Attorney General's discretion. I also think not to- You've got to come back to the- I was just going to say, of course, the Attorney General made decide not to subject the alien to removal in the first place, right? That's true, yes, although aggravated felony is a ground for removal. But I also, I don't want to lose sight of the fact that just because this petitioner sentence was one day and five years' appropriation does not mean that he committed a minor of crime of some kind. We actually don't know what the conduct was. It's not in the record of the amount. But the only thing you've been able to think of, my guess is that gets around his argument that arson and explosives will be covered by the crime of violence. Is it what if a person sets fire to his own property? Now, when would a person set fire to his own property? When he wants to commit fraud? And here we have a provision that puts fraud within it. And moreover, it has the limitation of $10,000. So therefore, serious fraud crimes will fall within this other section. So not even the case that you've really brought up is actually needs this provision to prosecute state-explosive crimes, because either they're against other people's property in which case they fall within crime of violence, or they're against your own property in which case they are a speci of fraud over $10,000. I'm not sure that necessarily works under the categorical approach, because it would depend what the person was actually prosecuted for in state court, and if they were prosecuted not fraud, but simply for arson. And it was a provision that said that included arson against your own property, then I think he wouldn't fall into either one. But there's actually another reason that I didn't get to before. I think some arson might not be crimes of violence, and there's actually just some uncertainty around this, but after this Court's decision in Leacow, people are continuing to wrestle with whether a recklessness would count as a crime of violence. I think there are some, at least, forms of recklessness that are picked up by the substantive elements of Section 844, malicious arson would include deliberate indifference to the possibility that there's going to be damage, and so there might be some slippage there as well, although, as I say, I think that's a very important point. I know what do you think about this? I mean, I think I dread this suggestion, but when I got into that in Yeh-Half, and God, there's no way to avoid just doing this section by section, and saying what did Congress want section by section, and then sometime, you know, and then if we did that section by section, maybe it would be satisfactory to say, you know, let them prove the jurisdictional hook in the deportation proceeding. That gives the Attorney General considerably more discretion and she can do it if she wants. She doesn't have to do it if she doesn't want to. Although I hesitate to project a helpful suggestion, I actually think that the answer here is to drop out the jurisdictional provision entirely and not to do that for a couple of different reasons. Well, we, first of all, I don't think it works for foreign crimes. So in a foreign crime situation, you can't come in and provide proof that it had an interstate commerce element because there's not really an equivalent to that on the foreign side. And so I just think there's a whole serious set of crimes that Congress wanted to include as to which that approach wouldn't function. It would also really multiply the difficulty of the proceedings and make them much longer and harder. And I do think the language here is a little different than the language that the court was looking at in Yeh-Half, where this $10,000 limitation was in the aggravated felony provision itself, and it was worded in a particular way that the court seized on. So I just don't think that analysis necessarily carries over here. But again, I think that all of the various signs that you would use to interpret the statute, and by the way, for the courts of appeals that have addressed this, have said, the statute is unambiguously clear. It means what the board said it meant. I think that all of those signs are in place and I show you that you should be dropping. Go back to your argument about subsection, Jay. Are there state reco offenses for which a maximum term of imprisonment is less than a year? I don't know the answer to that, but I think there may be such offenses and there might be foreign offenses like that as well. And I haven't been able to canvas that whole area, obviously. And I still think that's the only explanation for that limiting language at the end of the statute. Are there state where foreign reco offenses at all? I honestly don't know the answer to that, but I think there might well be if there are state reco statutes
. So therefore, serious fraud crimes will fall within this other section. So not even the case that you've really brought up is actually needs this provision to prosecute state-explosive crimes, because either they're against other people's property in which case they fall within crime of violence, or they're against your own property in which case they are a speci of fraud over $10,000. I'm not sure that necessarily works under the categorical approach, because it would depend what the person was actually prosecuted for in state court, and if they were prosecuted not fraud, but simply for arson. And it was a provision that said that included arson against your own property, then I think he wouldn't fall into either one. But there's actually another reason that I didn't get to before. I think some arson might not be crimes of violence, and there's actually just some uncertainty around this, but after this Court's decision in Leacow, people are continuing to wrestle with whether a recklessness would count as a crime of violence. I think there are some, at least, forms of recklessness that are picked up by the substantive elements of Section 844, malicious arson would include deliberate indifference to the possibility that there's going to be damage, and so there might be some slippage there as well, although, as I say, I think that's a very important point. I know what do you think about this? I mean, I think I dread this suggestion, but when I got into that in Yeh-Half, and God, there's no way to avoid just doing this section by section, and saying what did Congress want section by section, and then sometime, you know, and then if we did that section by section, maybe it would be satisfactory to say, you know, let them prove the jurisdictional hook in the deportation proceeding. That gives the Attorney General considerably more discretion and she can do it if she wants. She doesn't have to do it if she doesn't want to. Although I hesitate to project a helpful suggestion, I actually think that the answer here is to drop out the jurisdictional provision entirely and not to do that for a couple of different reasons. Well, we, first of all, I don't think it works for foreign crimes. So in a foreign crime situation, you can't come in and provide proof that it had an interstate commerce element because there's not really an equivalent to that on the foreign side. And so I just think there's a whole serious set of crimes that Congress wanted to include as to which that approach wouldn't function. It would also really multiply the difficulty of the proceedings and make them much longer and harder. And I do think the language here is a little different than the language that the court was looking at in Yeh-Half, where this $10,000 limitation was in the aggravated felony provision itself, and it was worded in a particular way that the court seized on. So I just don't think that analysis necessarily carries over here. But again, I think that all of the various signs that you would use to interpret the statute, and by the way, for the courts of appeals that have addressed this, have said, the statute is unambiguously clear. It means what the board said it meant. I think that all of those signs are in place and I show you that you should be dropping. Go back to your argument about subsection, Jay. Are there state reco offenses for which a maximum term of imprisonment is less than a year? I don't know the answer to that, but I think there may be such offenses and there might be foreign offenses like that as well. And I haven't been able to canvas that whole area, obviously. And I still think that's the only explanation for that limiting language at the end of the statute. Are there state where foreign reco offenses at all? I honestly don't know the answer to that, but I think there might well be if there are state reco statutes. But reco is a, is regarded as a very serious climate. It seems strange to have a reco misdemeanor. I've never heard of such a thing. I've seized on the reco statute, but actually the very next provision in Jay, which is Section 1084, the same analysis would apply. Section 1084 is a statute that has an interstate commerce element in it. It has to do with gambling and transmitting information for gambling and interstate commerce. And it is punishable by up to two years when it is prosecuted federally and there's a federal conviction. So the same analysis would work there as well. And that's something where I think it's pretty clear that there would be state analogs to the substantive elements of that crime. There would be foreign analogs to the substantive elements of that crime as well. I did want to pick up on one other thing that Petitioner said in his presentation, which is why didn't Congress just use a generic definition of arson here? And I think there are a number of reasons for that. For one thing, I think it would have been under-inclusive because it would have included the explosives offenses that are set forth in the federal statute very likely, or it's possible that courts would have reached that conclusion. For another, I think it would have entailed, and I know this Court is familiar with the process, it would have entailed coming up with what the elements of that generic offense are, and that can be difficult, I think it could be especially difficult in the arson context where there are states that are sort of all over the place and that have moved away from the classic common law definition of burning up a dwelling place. And so I think there are very good reasons that Congress had when it found a federal criminal provision that had the substantive elements that it wanted to simply refer to that federal criminal provision using the looser language of described in light of the penultimate sentence, and that's something that would add that. I can't square this with the categorical approach. You know, we've been very clear. The categorical approach says every element of a crime that has to be proven to a jury has to be included in the state of defense. But now you're saying it's every categorical element that's not your restriction. Can you get that from? Well, I think the thrust of the categorical approach is that you don't look at the particular conduct that the person engaged in, you look at the elements of the crime that they were convicted of, and then you compare it to something that Federal law tells you to compare it to. And I think that is a question of statutory interpretation. What it is that you're supposed to be comparing it to, that the Federal law is telling you is the proper comparator. And here, that's the question we're answering. That's the question about what described and means, about what it means in light of the penultimate sentence. I don't think there's anything in this Court's categorical approach cases that would preclude the interpretation that we're putting forth here today. I just think it has an arisen in exactly this way before
. But reco is a, is regarded as a very serious climate. It seems strange to have a reco misdemeanor. I've never heard of such a thing. I've seized on the reco statute, but actually the very next provision in Jay, which is Section 1084, the same analysis would apply. Section 1084 is a statute that has an interstate commerce element in it. It has to do with gambling and transmitting information for gambling and interstate commerce. And it is punishable by up to two years when it is prosecuted federally and there's a federal conviction. So the same analysis would work there as well. And that's something where I think it's pretty clear that there would be state analogs to the substantive elements of that crime. There would be foreign analogs to the substantive elements of that crime as well. I did want to pick up on one other thing that Petitioner said in his presentation, which is why didn't Congress just use a generic definition of arson here? And I think there are a number of reasons for that. For one thing, I think it would have been under-inclusive because it would have included the explosives offenses that are set forth in the federal statute very likely, or it's possible that courts would have reached that conclusion. For another, I think it would have entailed, and I know this Court is familiar with the process, it would have entailed coming up with what the elements of that generic offense are, and that can be difficult, I think it could be especially difficult in the arson context where there are states that are sort of all over the place and that have moved away from the classic common law definition of burning up a dwelling place. And so I think there are very good reasons that Congress had when it found a federal criminal provision that had the substantive elements that it wanted to simply refer to that federal criminal provision using the looser language of described in light of the penultimate sentence, and that's something that would add that. I can't square this with the categorical approach. You know, we've been very clear. The categorical approach says every element of a crime that has to be proven to a jury has to be included in the state of defense. But now you're saying it's every categorical element that's not your restriction. Can you get that from? Well, I think the thrust of the categorical approach is that you don't look at the particular conduct that the person engaged in, you look at the elements of the crime that they were convicted of, and then you compare it to something that Federal law tells you to compare it to. And I think that is a question of statutory interpretation. What it is that you're supposed to be comparing it to, that the Federal law is telling you is the proper comparator. And here, that's the question we're answering. That's the question about what described and means, about what it means in light of the penultimate sentence. I don't think there's anything in this Court's categorical approach cases that would preclude the interpretation that we're putting forth here today. I just think it has an arisen in exactly this way before. But again, the important thing about the categorical approach is that you don't look at the petitioner's particular conduct here. As I say, it's not even the record what his conduct is. All that we know is he committed a felony under New York State law that was punishable. My understanding is by up to seven years in prison. And that's the only information we have. And then we have to look at the elements of the New York statute that he was convicted under and compare them to the offense described in Section 844. I. To the extent that the Court thought that there were ambiguity, we would ask for a reference to the board here. But we don't think there is ambiguity. We think that as the courts of appeals have said that there is one reading of the statute to which all signs point and that's the reading the Court should adopt. If there are no other questions. The board's original decision was the other way. And it was until a circuit came out. It didn't end the board when it in line with the circuit. So the board read it. Doesn't that delete the strength of the board's current position? And it was not its original position? I don't think so. I mean, it is true that the board changed positions. But it knew that it was doing it and it gave reasons for doing it. And it gave a lot of reasons in its ultimate decision in 2002 that are not reflected in the original decision that the board doesn't seem to have considered in the original decision. So I just think it's the Vascas-Mini's decision from 2002 that has an analysis very similar to the analysis of the courts of appeals that have found the statute on ambiguous have walked through here in looking at not only at the described in language itself, but at all the other signs about what the statute means. And I don't think it should be a negative that the board revisited and came to the correct conclusion. It might not remember this right, but it wasn't there a change in position in Chevron. Yes. It's self. There you go
. But again, the important thing about the categorical approach is that you don't look at the petitioner's particular conduct here. As I say, it's not even the record what his conduct is. All that we know is he committed a felony under New York State law that was punishable. My understanding is by up to seven years in prison. And that's the only information we have. And then we have to look at the elements of the New York statute that he was convicted under and compare them to the offense described in Section 844. I. To the extent that the Court thought that there were ambiguity, we would ask for a reference to the board here. But we don't think there is ambiguity. We think that as the courts of appeals have said that there is one reading of the statute to which all signs point and that's the reading the Court should adopt. If there are no other questions. The board's original decision was the other way. And it was until a circuit came out. It didn't end the board when it in line with the circuit. So the board read it. Doesn't that delete the strength of the board's current position? And it was not its original position? I don't think so. I mean, it is true that the board changed positions. But it knew that it was doing it and it gave reasons for doing it. And it gave a lot of reasons in its ultimate decision in 2002 that are not reflected in the original decision that the board doesn't seem to have considered in the original decision. So I just think it's the Vascas-Mini's decision from 2002 that has an analysis very similar to the analysis of the courts of appeals that have found the statute on ambiguous have walked through here in looking at not only at the described in language itself, but at all the other signs about what the statute means. And I don't think it should be a negative that the board revisited and came to the correct conclusion. It might not remember this right, but it wasn't there a change in position in Chevron. Yes. It's self. There you go. There you go. I wasn't misremembered. Thank you. Mr. Guadano, you have four minutes remaining. Congress could have utilized generic arson. Throughout Title 18, there are references to arson. Both briefs talk about the Federal 3-Strike Slaw. Within the Federal 3-Strike Slaw is actually a definition of arson. Congress could have referred to the definition of arson in that provision in provision K of the aggravated felony provision. It discusses first generically managing a prostitution business, and then it refers to Title 18 offenses regarding transportation of prostitutes. Congress could have said arson and then referred to Title 18 U.S. 844i. It could have combined both arson, generic arson, and reference to explosive devices. With regards to the comment about not all state arson offenses being crimes of violence because some would involve personal property, that issue has been resolved by the Board of Immigration Appeals since 1998. Our reply brief mentions a case from the board called Matter of Palacios, where the board held the damaging your own property would constitute. Burning your own property through arson would constitute a crime of violence. With regards to the comments about defined in, with regards to the INA, defined in is used consistently to refer to a definition, and the congressional drafting manuals all indicate that defined in should be referring to a definition. And my final point is that what we're seeking here is cancellation of removal, discretionary relief, and that Congress would not have wanted to deprive individuals who have been convicted of minor offenses or less serious offenses of such discretionary relief and would want them to have a chance to demonstrate. If we do with not, if we rule your way, that it won't address the child pornography possession laws, or that it won't address some of the explosion laws. As I said before, there is overlap, and that they're very likely. Now, I want to know where the overlap is for the child pornography. There is on that one, I don't think there's any question about that because there is a second circuit case, I believe it's called, out versus holder, where the government did not pursue the child pornography under the provision my friend is referring to. It was pursued on under sexual abuse of a minor
. So that is, there's at least one case out there where that is the way that the government pursued one of these cases. Thank you, Mr. Court-Anhell. Council, case is submitted