[00:00:04] Speaker 04:
and welcome to the Ninth Circuit Court of Appeals.

[00:00:06] Speaker 04:
My name is Morgan Christen and I'm one of the judges on the circuit court.

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I am sitting this week with Judge Hurwitz, my colleague from Phoenix, and delighted to be sitting.

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We both thank and welcome Judge Wallach for joining us to help us out with our calendar this week.

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Just a bit of housekeeping.

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There are three cases for which we will not hear argument today.

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They are 23-1840, Rosas-Rosas versus Garland, 23-2068, United States of America versus Rowland, and 23-2632, Alberto Zarco versus Garland.

[00:00:46] Speaker 04:
The first case on the oral argument calendar has two case numbers, 21-1422 and 23-1997, Mario Chavez versus Garland.

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Council, if you could give me one minute to get the iPad and stuff set up here, I'll be ready to go.

[00:01:03] Speaker 04:
Okay, I think we're ready.

[00:01:22] Speaker 01:
Good morning, your honors.

[00:01:24] Speaker 01:
May it please the court.

[00:01:25] Speaker 01:
My name is Rachel Game and I'm appearing on behalf of Edgar Mario Chavez.

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I'd like to reserve two minutes for rebuttal.

[00:01:33] Speaker 01:
Sure.

[00:01:36] Speaker 01:
I'd like to raise the following issues this morning.

[00:01:39] Speaker 01:
Whether Mr. Murillo-Chavez's convictions for unlawful use of a weapon and criminal mistreatment are CMITs, and whether the grant of SIJS is admitted in any status for purposes of accruing residents to be eligible for cancellation of removal under 1229 BA.

[00:02:06] Speaker 01:
The board.

[00:02:07] Speaker 02:
On that first one, you say in your opening brief at 10 pages, 19 through 29, that the board erred on CMIT.

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What's your strongest legal authority for that proposition?

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For the unlawful use of a weapon?

[00:02:30] Speaker 02:
On it not being a crime involving moral turpitude.

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The strongest argument, I believe, is that the court's ruling in Flores Vasquez v. Garland, where the court held that the crime of menacing is not a CIMT.

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Even if the possession of a weapon with intent to harm is not a CIMT,

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You don't prevail unless the other conviction is also not a CIMT, correct?

[00:03:13] Speaker 01:
I could prevail if an SIJS is an admission.

[00:03:18] Speaker 03:
Well, let's assume for a moment.

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Yeah, I understand.

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Let's assume for a moment that the admission only occurs when your client became an LPR.

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OK?

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If one of the two cited crimes is a CIMT, then you lose on the CIMT front.

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They don't both have to be.

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Only one has to be, correct?

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Correct.

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So I'm interested in you addressing not the weapons possession charge, but the charge

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not providing necessary aid to a dependent child.

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It requires knowingly not doing so.

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And that strikes me as a crime involving moral turpitude.

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So I'd like to hear you address that crime.

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OK.

[00:04:14] Speaker 02:
There's authority that says that not providing glasses to a child is a crime involving moral turpitude in certain circumstances.

[00:04:24] Speaker 01:
I don't have direct authority with the Ninth Circuit, Your Honor, but I would point to that the way that Oregon defines knowingly is a general intent crime.

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So knowingly only refers to the conduct and not to the outcome.

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The outcome is whatever.

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The outcome of the conduct is criminal negligence.

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So both of those.

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But this requires more than negligence.

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This requires that you know that somebody required, not that you should have known, but that you know that somebody should have required this aid and nonetheless decided not to provide it.

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It doesn't require that you intend to harm the person, but it does require, under Oregon law, that you know that the dependent require the assistance and decide not to provide it.

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And that strikes me as

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If I think of moral turpitude, what I think of is sort of blameworthiness in a more philosophical sense than just the fact that it violates the law.

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This one strikes me as

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close to what I would think is a crime involving moral turpitude.

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The gun possession thing may or may not.

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But this one, I'm having trouble concluding that it's not.

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So help me.

[00:05:50] Speaker 01:
I would point to another case in Oregon, which was actually criminal mistreatment in the second degree.

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The only difference between first degree and second degree is first degree is knowingly and second degree is

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with criminal negligence.

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And that case is State v. Worthington.

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And in that case, the family were very religious, and they believed that they could heal their daughter through anointing oils and prayer.

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And the daughter ended up passing away.

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But that was a negligence case.

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That was a criminal negligence case, was it not?

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That was criminal mistreatment in the second degree.

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In the second degree, which only required a negligent state of mind.

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Right.

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This conviction is not in the second degree, is it?

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No.

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This was knowingly, but they're both general intent crimes.

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So neither one had to be intentionally causing the outcome.

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So in the case of drown, which I cited in my brief, the mother, she was a battered wife, and she

[00:06:57] Speaker 01:
was under the influence of her husband who called himself the Messiah, and she didn't get any of her children medical care, but not with the intention to harm her children, but just knowing that they may have needed care.

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But does a crime involving moral turpitude require the intent to harm?

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I would say it does.

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Then why, if it does, then why doesn't the firearms offense fit perfectly within it?

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Because you can't be convicted in Oregon of the firearms offense without the possession with the intent to harm someone.

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With the firearms conviction, it's the intent to threaten somebody.

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Unlawful use of a weapon is the intent to threaten, not necessarily to cause harm.

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But the harm is the fear.

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Isn't the harm the threat?

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the harm could be the fear.

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But as the State v. Rose points out that in that case when the trooper stopped the car on suspicion of DUI in that case there was no evidence in the record that the trooper had fear or that he was harmed when he saw the holster without a gun he asked the defendant do you have a gun and she handed it to him and just based on that she was convicted

[00:08:15] Speaker 01:
unlawful use of a weapon and there was no evidence in the record that that trooper actually experienced any harm.

[00:08:22] Speaker 03:
We took you out of the order that you started in and I know you wanted to address what the date of admission was and I think we asked counsel to be prepared to address the Hernandez case which wasn't cited in the briefs.

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Correct.

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Doesn't that make it pretty clear that the date of admission was when your client became an LPR?

[00:08:44] Speaker 01:
Well, petitioner acknowledges after this court's decision in Hernandez v. Garland that the pathway back to Garcia v. Holder is more challenging.

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But the petitioner would also argue that Hernandez v. Garland went too far by expanding the holding in Sanchez.

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We're bound by it.

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A three-judge court, you know, sorry.

[00:09:12] Speaker 01:
Well, in Hernandez v. Garland, the court held that Sanchez effectively overruled precedent, judicially expanding the statutory definition of an admission, and also establishes that Hernandez's TPS does not constitute an admission in any status.

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And the court cited U.S.

[00:09:32] Speaker 01:
v. Delgado, Ramos.

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Let's assume, we have to assume as a three-judge panel that Hernandez is right.

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We're bound by it.

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We're bound by it.

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An unbound court could overrule it, but didn't.

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So if Hernandez is right and TPS status,

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doesn't give rise to admission, how could LPR status give rise to admission?

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I'm sorry, SJS.

[00:09:54] Speaker 01:
If Hernandez is right, then there could be no judicial expansion of what the term admitted means, which means that Mr. Murillo Chavez was never admitted because the definition that LPRs, when they adjust status, like he did through SIJS, that that's an admission, that's also a judicially expanded definition of what it means to be admitted.

[00:10:16] Speaker 03:
I think what you're doing is criticizing the reasoning of Hernandez.

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And perhaps, I don't forgot who wrote it.

[00:10:23] Speaker 03:
Maybe I did.

[00:10:24] Speaker 03:
Maybe Judge Christen did not forget.

[00:10:26] Speaker 03:
But perhaps whoever wrote it made a mistake.

[00:10:28] Speaker 03:
But if it's taking Hernandez at face value, doesn't that doom your argument about when your client was admitted?

[00:10:38] Speaker 01:
Well, that is true, but if we take Hernandez at face value, then my client could never even have been removable as charged because he was never admitted as an LPR.

[00:10:48] Speaker 01:
We didn't make that argument in our brief, but that's if you read Hernandez overruling all judicially expanded definitions of admission, then it has to also go to that he was never admitted as an LPR because that's a judicial expansion of what it means to be admitted.

[00:11:05] Speaker 04:
one other possibility and you haven't suggested this and I'm not trying to put words in your mouth but since I jumped in to say that we're bound by this authority as a three-judge panel we are occasionally somebody appears before us procedural and there's nothing improper about that and what they're really urging is that we take the case on bonk and reconsider it but I don't know if that's the pathway you're taking or if what you're telling us is that you think that the

[00:11:31] Speaker 04:
this most recent authority doesn't doom this argument.

[00:11:34] Speaker 04:
I think your word was doom.

[00:11:37] Speaker 01:
Well, the other argument I do have, Judge Kristen, is that in Sanchez, that an SIJS, they did seem to carve out a little exception for SIJS because it has a special provision for adjustment of status, like a U visa.

[00:11:54] Speaker 01:
And we do know that USCIS is treating when someone gets a U visa, whether they're admitted with a U visa or they're a non-immigrant status, they're treating that as being admitted so they can adjust status under 1255A.

[00:12:09] Speaker 01:
And SJS is similar to a U and a T visa in that there is a special provision

[00:12:16] Speaker 01:
under 1255 H1 for them to adjust.

[00:12:21] Speaker 01:
So that does take it out of that it's not, they're not being admitted because of all of these equities and benefits that they have in SJS status, but they're being admitted because they are, have a specific pathway to be adjusted within the United, within the U.S.

[00:12:41] Speaker 01:
and also

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parole that SJS gets isn't specifically excluded in the statute from being an admission.

[00:12:55] Speaker 04:
I'm not sure how much time you wanted to reserve.

[00:12:56] Speaker 04:
Forgive me.

[00:12:57] Speaker 04:
Do you have more you want to tell us now or would you like to reserve the remainder?

[00:13:01] Speaker 01:
I'll reserve the remainder.

[00:13:02] Speaker 04:
That sounds great.

[00:13:03] Speaker 04:
We'll hear from opposing counsel.

[00:13:26] Speaker 00:
Good morning.

[00:13:26] Speaker 00:
May it please the court.

[00:13:27] Speaker 00:
My name is Craig Newell and I'm here on behalf of the Attorney General.

[00:13:31] Speaker 00:
Mr. Murillo Chavez is statutorily ineligible for cancellation of removal because the application of the stop time rule precluded him from establishing the seven years of continuous residence he needed to obtain that relief.

[00:13:45] Speaker 00:
And the two main issues are, as my colleague stated, whether he has been convicted of a crime involving moral turpitude, the commission of which triggered that stop time rule, and the second is how do we go about calculating

[00:13:57] Speaker 00:
the period of continuous residence.

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And I'll address them in that order if the court wishes.

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So as to the crime involving moral interpreter, there are two convictions here, either one of which would bar him from this relief.

[00:14:14] Speaker 03:
Address the gun crime first.

[00:14:18] Speaker 03:
We used to be able to say the BIA has said this is a crime involving moral interpretude, but we're no longer

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were no longer required to defer to their reasonable interpretation after Oberbrite.

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So why?

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It's sort of strange.

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No harm occurred in the case.

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No actual threat was made.

[00:14:42] Speaker 03:
Why is this a crime involving moral interpretation?

[00:14:46] Speaker 00:
It is still a crime involving moral turpitude and even the fact that you no longer, Loper Bright says there's no longer that deference.

[00:14:59] Speaker 00:
This court has...

[00:15:01] Speaker 00:
Yes, it still has the power of persuasion.

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And this court has been persuaded.

[00:15:06] Speaker 00:
And this offense is similar to an aggravated assault.

[00:15:11] Speaker 03:
Well, but if it were an assault, our cases say, I'm thinking of Florence Vasquez, an evil intent and the infliction of substantial harm.

[00:15:22] Speaker 03:
So if it were an actual assault,

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But there is no infliction of substantial harm here.

[00:15:29] Speaker 03:
There's only the intent part, but not the actus rea part, if you will.

[00:15:34] Speaker 00:
Right, but in Flores Reyes, the reason why the court, in that menacing, which was an offense very similar to a simple assault, looked for both an evil intent and that actual harm is because there, because- Vile and depraved conduct that shocks the public conscience, the court said last year.

[00:15:59] Speaker 02:
for two years ago.

[00:16:00] Speaker 04:
Well, we've said that for decades.

[00:16:02] Speaker 04:
Correct.

[00:16:02] Speaker 04:
And so I have a question, if I could interject.

[00:16:05] Speaker 04:
Forgive me.

[00:16:06] Speaker 04:
But I think we're all still figuring out what Loper Breit's going to mean.

[00:16:11] Speaker 04:
But if you look at the arc of what a crime involving moral turpitude meant, my colleague has just given you the, as you know very well, the historic.

[00:16:20] Speaker 04:
And there's been mission creep, pretty serious mission creep in this area.

[00:16:24] Speaker 04:
And it used to be,

[00:16:25] Speaker 04:
that our case law interpreted the statute to really exclude property crimes.

[00:16:32] Speaker 04:
We were looking at crimes of violence against humans.

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The victim needed to be a person and we were looking for physical harm to a human.

[00:16:40] Speaker 04:
And of course, there's been this evolution, I'll say, in the case law.

[00:16:47] Speaker 04:
I don't know that we have created that.

[00:16:49] Speaker 04:
I think we're following and giving deference to the agency so that we got to a place in some instances where

[00:16:56] Speaker 04:
Statutes involving petty theft were deemed crimes involving moral turpitude.

[00:17:00] Speaker 04:
So it's really been a shift.

[00:17:02] Speaker 04:
So I'm just going to invite you to engage in this.

[00:17:07] Speaker 04:
And if we look really just at where we started, and is it correct for us to roll the?

[00:17:13] Speaker 04:
It requires a bit of time travel, it seems.

[00:17:15] Speaker 04:
Where should we be on this continuum now in light of Loper Bright?

[00:17:20] Speaker 02:
When you engage in that time travel, start with you could hang a child for stealing a loaf of bread in England in the 18th and 19th century, you know.

[00:17:31] Speaker 04:
Perhaps not quite that far back.

[00:17:34] Speaker 04:
Perhaps not quite that far back.

[00:17:36] Speaker 04:
But I don't think I articulated my point very well, but you appreciate, as Judge Hurwitz said, we're now talking about a harm.

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It's a human, it's not a property offense, right?

[00:17:46] Speaker 04:
But nobody got shot.

[00:17:47] Speaker 04:
The harm is the fear.

[00:17:49] Speaker 04:
Where does that fall in the spectrum?

[00:17:51] Speaker 00:
If this falls on the spectrum, to go back and give the historical context, I think this core, as well as the board, have always looked for that morally base and deprived and contrary to social norms.

[00:18:08] Speaker 00:
But the board hasn't.

[00:18:09] Speaker 04:
That's what I'm asking you to engage with.

[00:18:11] Speaker 04:
The board hasn't.

[00:18:12] Speaker 04:
The board has changed its mind over time and got to the place where they were going to include property crimes.

[00:18:18] Speaker 04:
right, including in some instances petty theft, including stealing a sandwich.

[00:18:23] Speaker 04:
So if we can erase that from our memories, or should we be erasing that from our memories and going back to the sort of quintessential way we have defined this from looking just at the statute, vile and base

[00:18:37] Speaker 00:
Right.

[00:18:39] Speaker 00:
I think first here we don't, neither of these offenses are the property crime situation.

[00:18:46] Speaker 00:
The property crime situation more, and I don't want to get into it that much, but they more mirrored the fraud type crimes because of

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The CIMT has always been about, it's about judging the offense.

[00:19:04] Speaker 00:
It's what does that offense say about the person's character?

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Does this offense reflect poorly on the person's character?

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And that's why there's such an emphasis on the mens rea in these crimes.

[00:19:17] Speaker 00:
So here we have a specific intent crime, whether you are using it to actually inflict or using it to immediately threaten someone.

[00:19:27] Speaker 00:
Both of those have that malign intent that's very highly characteristic of a CIMT.

[00:19:34] Speaker 00:
That is very much present in this unlawful use of a weapon crime.

[00:19:39] Speaker 04:
Because the harm is you're intentionally causing fear in another human?

[00:19:44] Speaker 00:
and you're doing it with this aggravating factor of the deadly or dangerous weapon is what's elevating something that appears very similar to an assault or these menacing.

[00:19:58] Speaker 00:
It elevates it.

[00:20:00] Speaker 00:
to a morally turportunist crime.

[00:20:03] Speaker 00:
Because you take that Rose case, you have a situation where this woman, Ms.

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Rose, had that malign intent.

[00:20:12] Speaker 00:
They get pulled over as she takes a loaded pistol out of her purse.

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and takes the safety off, cocks it, hides it under the purse.

[00:20:22] Speaker 00:
And when the officer approaches them and asks for the license of the driver, she's about to pull it out, and he stops her.

[00:20:29] Speaker 00:
For whatever reason, she doesn't luckily go forward with anything.

[00:20:34] Speaker 00:
But this is covering the situation of this split second, where one second later, you do have a violent confrontation and a potential of serious harm.

[00:20:46] Speaker 03:
And that's what- It is a serious crime.

[00:20:48] Speaker 03:
No one doubts that.

[00:20:49] Speaker 03:
The difficulty, I think, is that the possession of the weapon, at least on the elements of the offense, is not itself illegal.

[00:21:00] Speaker 03:
In other words, we're not dealing with a convicted felon possessing it.

[00:21:03] Speaker 03:
So we have somebody who's engaged in a legal conduct who, in this case, because we're talking about an attempt, as opposed to an actual offense,

[00:21:15] Speaker 03:
With evil, it has evil intent.

[00:21:17] Speaker 03:
And that just seems to be enough, in your view, to constitute a CIMT.

[00:21:22] Speaker 03:
It's not the nature of the crime in this case that you're arguing constitutes it.

[00:21:27] Speaker 03:
It's merely the intent, isn't it?

[00:21:30] Speaker 03:
No one was put in fear in this case.

[00:21:33] Speaker 03:
No one needs to be put in fear, I'm sorry, under the statute, because it's only an attempt.

[00:21:38] Speaker 00:
Right.

[00:21:39] Speaker 00:
And because in the end, the CIMT inquiry is looking at how does it reflect on the defendant's character.

[00:21:49] Speaker 03:
So then why aren't property crimes then all covered?

[00:21:52] Speaker 03:
I mean, because it's a pretty... I intend to go into your house and steal your jewelry.

[00:21:57] Speaker 04:
That's a pretty... Well, but that's not the case law that the court did not lead the charge on that.

[00:22:02] Speaker 04:
The court did not lead the charge in expanding CIMTs to property crimes.

[00:22:06] Speaker 04:
And as you've acknowledged, this is not a property crime.

[00:22:09] Speaker 00:
Right.

[00:22:09] Speaker 00:
And we don't have to address that here.

[00:22:11] Speaker 00:
And I think I, as in a lay sense, people get since, oh, petty theft.

[00:22:18] Speaker 00:
How can that be a CIMT?

[00:22:21] Speaker 03:
That is a question for another day, but here we... Part of the problem is, and now that we don't have deference,

[00:22:27] Speaker 03:
No one really knows what a CIMTA is.

[00:22:29] Speaker 03:
It's a mushy definition.

[00:22:31] Speaker 03:
And so what we're trying to do is find a combination of actions and mens rea that lead us to believe that the person somehow has more turpitude.

[00:22:41] Speaker 04:
Well, that's not what I was trying to do.

[00:22:43] Speaker 04:
As an initial step, forgive me, as an initial step is I'm trying to figure out what Loper-Brite is going to mean and what is your position about whether we should be trying to roll back our case law and looking to what I will say is the traditional definition.

[00:22:57] Speaker 04:
that Judge Wallach has asked us to revisit and peel off this layer of evolution that I think was deference to the agency, expanding what does or does not fit within that basket.

[00:23:10] Speaker 04:
So I was asking you to address that.

[00:23:12] Speaker 00:
Okay, a more conceptual, okay, I understand.

[00:23:15] Speaker 04:
In terms of the decision, the framework we ought to use here.

[00:23:20] Speaker 00:
I have two answers for that.

[00:23:23] Speaker 00:
First of all, as with respect to Loper-Brite in particular, the Supreme Court

[00:23:31] Speaker 00:
did advise that just because it has overruled Chevron, it does not call into question all cases that previously have relied on Chevron.

[00:23:40] Speaker 00:
It's not an automatic that they still are awarded stare decisis.

[00:23:45] Speaker 00:
And the second more particular point is while there may have been an evolution as to the application of the CIMT to particular types of crime,

[00:23:58] Speaker 00:
The focus on the base-deprived conduct and looking at the intent in the conduct, the intent in the actus reus and looking at them in concert, this court and the board have both said

[00:24:13] Speaker 00:
that that's the approach and while reasonable minds can disagree on how to do that, look at the combination, I think even to look at this, and this is a de novo situation because this is not a board presidential decision,

[00:24:30] Speaker 00:
Here, de novo, looking at what we have with this unlawful use of a weapon, both avenues of a violation involve the specific intent to immediately harm someone or immediately threaten them with harm with a dangerous or deadly weapon that is specifically designed to cause such death and serious harm.

[00:24:50] Speaker 00:
In the Altear case, the court recognized that that

[00:24:53] Speaker 00:
You know, that aggravating factor, that is what steps this up from your normal assault or criminal threat situation.

[00:25:00] Speaker 03:
And I think your response of the Judge Kristen's question, and it really goes to both crimes here.

[00:25:06] Speaker 03:
There's plenty of intent on the gun side of this case.

[00:25:10] Speaker 03:
There's an evil intent.

[00:25:12] Speaker 03:
But the act, which is just possession of the gun with the evil intent,

[00:25:17] Speaker 03:
doesn't strike me as all that morally corrupt.

[00:25:21] Speaker 03:
On the dependent side, conduct strikes me as incredibly morally corrupt.

[00:25:32] Speaker 03:
But I'm worried about whether there's sufficient intent if it just has to be knowing.

[00:25:37] Speaker 03:
So would you address that?

[00:25:38] Speaker 00:
OK, yes, Your Honor.

[00:25:39] Speaker 00:
I think this is another example of how we look at all these things in concert.

[00:25:46] Speaker 00:
Yes, the conduct is quite severe.

[00:25:50] Speaker 00:
And the Oregon courts have said that this is conduct that causes or will cause serious injury.

[00:25:57] Speaker 00:
And I don't dispute that this is a general knowing intent.

[00:26:01] Speaker 00:
is applicable here.

[00:26:02] Speaker 00:
But there are circumstances where that is sufficient.

[00:26:06] Speaker 00:
When the harm, the resulting harm or conduct is quite severe, which we have, and we have this other additive factor that this is not, this is involving a protected class of victims.

[00:26:18] Speaker 00:
The victim is someone who you have a legal duty over, which is most likely your child or someone who is dependent on you.

[00:26:27] Speaker 00:
And so

[00:26:29] Speaker 00:
In that situation, you have a CIMT, even though you don't have a specific intent manager.

[00:26:36] Speaker 00:
you have this very severe conduct, you have this aggravating factor of a protected class of victims.

[00:26:43] Speaker 00:
So it's all this weighing that you have to do, and they're kind of, they're both, these are kind of two different sides of a coin, where one's more intent heavy and the other one's more conduct heavy, but either way you have a crime involving moral turpitude.

[00:26:59] Speaker 02:
Within the general context, I suppose another way of looking at it is, is this

[00:27:05] Speaker 02:
an action which is frightening to society, and how frightening is it?

[00:27:11] Speaker 00:
Right, I think that's another way, because in the end these are crimes that society is not just saying are legal, but are condemning them as a substantive normative judgment that these are moral wrongs.

[00:27:25] Speaker 00:
Malam, I'm going to mess it up so I won't say the one.

[00:27:30] Speaker 00:
And these are, these both are.

[00:27:33] Speaker 00:
Society does not want people

[00:27:37] Speaker 00:
walking around with guns, simultaneously holding this intent to harm someone with them.

[00:27:44] Speaker 00:
And nor do we want someone who, with someone under their care, knowingly withholding such things that they need for their basic survival.

[00:27:54] Speaker 00:
I see my time is running low, and I just want to briefly address the Hernandez decision and the admission issue.

[00:28:06] Speaker 00:
The Hernandez decision and the Santos v. Mallorca decision, they put further and final support that this grant of SIJ status is not admitted in any status because it does not have the

[00:28:24] Speaker 00:
It does not meet the statutory definition of admittance, which is someone entering from outside the country and being inspected and authorized.

[00:28:32] Speaker 00:
And it is very similar to TPS in the fact that this special immigrant juvenile status can only be given to someone who is in the United States, because it's someone who's in the custody of a United States-based juvenile court.

[00:28:48] Speaker 00:
So it's very similar.

[00:28:50] Speaker 00:
And I wanted to just address that.

[00:28:52] Speaker 00:
An adjustment of status, that's not a judicially created, admitted in a status because there is a separate definition at 8 USC 1101, 820 for

[00:29:07] Speaker 00:
admitted as a permanent resident.

[00:29:09] Speaker 00:
And admitted as a permanent resident is defined as someone who's been accorded permanent resident status.

[00:29:16] Speaker 00:
So the judicial definition of someone admitted in permanent resident status includes someone who was admitted from outside the country with law and came in here as a lawful permanent resident or someone who obtained it through adjustment of status in the United States.

[00:29:33] Speaker 00:
And so that's why that is not a separate issue.

[00:29:37] Speaker 00:
So if there are any other questions, I appreciate your questions.

[00:29:42] Speaker 00:
And thank you very much.

[00:29:43] Speaker 00:
Thank you very much.

[00:29:44] Speaker 04:
Thank you for your argument.

[00:29:47] Speaker 04:
You have some rebuttal time remaining.

[00:29:55] Speaker 01:
My colleague, Mr. Newell, is phrasing unlawful use of a weapon as a type of an assault.

[00:30:03] Speaker 01:
And I just want to point out that ORS 166220 is actually categorized with public order offenses.

[00:30:11] Speaker 01:
And it's not categorized under offenses against people.

[00:30:17] Speaker 04:
And I think- They have to be an offense against a person, right?

[00:30:20] Speaker 04:
By just by looking at the elements?

[00:30:22] Speaker 04:
I mean, I'm willing to roll back and look at this, as I indicated, I'm entertaining this thought experiment about what Loper Brite means.

[00:30:30] Speaker 04:
But the traditional CIMT did involve a threat against a human.

[00:30:34] Speaker 04:
And the harm, I think, here is the menacing.

[00:30:37] Speaker 04:
and Judge Hurbit has taken you through the mens rea element.

[00:30:41] Speaker 04:
So regardless of where it's housed, as a matter of formatting, doesn't the victim have to be a person to have been menaced?

[00:30:50] Speaker 01:
It does have to be a person, but I'm just saying that I think it goes too far to say it's a type of an assault conviction.

[00:30:57] Speaker 04:
But why not?

[00:30:58] Speaker 04:
The harm is the fear, right?

[00:31:00] Speaker 04:
Can you help me out with that?

[00:31:01] Speaker 04:
I'm not sure I'm getting your point.

[00:31:03] Speaker 01:
The harm is that you intend to put fear into somebody, but the person, there doesn't have to be any resulting fear or any resulting harm.

[00:31:16] Speaker 04:
Because it's an attempt.

[00:31:17] Speaker 04:
That's because it's an attempt.

[00:31:19] Speaker 01:
I think even if it were possessing, so you can have, the statute says you can have an attempt to use it unlawfully or that you can carry or possess it with the intention to use it unlawfully.

[00:31:36] Speaker 03:
If the completed crime would be a CIMT just for purposes of discussion, wouldn't an attempt also be one?

[00:31:45] Speaker 03:
Well.

[00:31:46] Speaker 03:
Doesn't the generic definition sweep in attempts?

[00:31:52] Speaker 01:
Oregon attempt is broader than the federal definition of attempt because.

[00:31:57] Speaker 03:
Well, now we get into a separate set of decisions that we've made.

[00:32:00] Speaker 03:
But in general, if you have a CIMT for a completed crime, isn't the attempt to commit that crime also a CIMT?

[00:32:11] Speaker 01:
Well, there wouldn't be the resultant harm if it's just an attempt.

[00:32:17] Speaker 03:
So, see, I don't know what you're arguing then.

[00:32:19] Speaker 03:
Are you arguing that because it's only an attempt, it's not a CIMT?

[00:32:24] Speaker 03:
I'm arguing that... If this crime had been completed, would it be a CIMT?

[00:32:29] Speaker 01:
If the person actually did feel fear... Put the person in fear of harm.

[00:32:35] Speaker 03:
Would it be a CIMT?

[00:32:39] Speaker 01:
Possibly.

[00:32:40] Speaker 01:
I don't know about that.

[00:32:42] Speaker 01:
Because I'm looking at the de minimis conduct.

[00:32:45] Speaker 03:
Well, certainly under the elements of this, then it seems to me what you must be arguing, if it's possibly, is that it's the attempt that takes it out of the CIMT category.

[00:32:54] Speaker 04:
Right, which means that you're looking at the effect on the victim as opposed to opposing counsel's argument that for CIMT purposes, looking at the moral culpability of the defendant.

[00:33:03] Speaker 01:
Right, yeah.

[00:33:04] Speaker 04:
Is that correct?

[00:33:05] Speaker 04:
I'm not trying to put words in your mouth.

[00:33:06] Speaker 04:
I am trying to understand the distinction between your

[00:33:08] Speaker 04:
approach to this and opposing counsels.

[00:33:12] Speaker 01:
You could have moral culpability in that you intended to do something, but it also has to be, there has to be a result in harm.

[00:33:21] Speaker 01:
So I could have all the intent, but if nothing follows through from that attempt, then it's not a CMIT.

[00:33:28] Speaker 03:
OK.

[00:33:29] Speaker 03:
Is there any?

[00:33:30] Speaker 03:
So then I get, OK.

[00:33:31] Speaker 03:
Go right ahead.

[00:33:31] Speaker 03:
I mean, I guess your argument is that attempts are not CIMTs.

[00:33:35] Speaker 01:
In this statute, this is in the CMIT.

[00:33:40] Speaker 01:
I have a little bit more time.

[00:33:41] Speaker 04:
Oh, forgive me.

[00:33:42] Speaker 04:
Go ahead.

[00:33:43] Speaker 04:
The clock has turned around.

[00:33:44] Speaker 04:
It's now counting back up because you're out of time.

[00:33:46] Speaker 04:
But why don't you go ahead and wrap up?

[00:33:49] Speaker 01:
Pardon me?

[00:33:50] Speaker 04:
The clock is going back up.

[00:33:51] Speaker 04:
It went to zero and is going back up.

[00:33:53] Speaker 04:
So you're actually out of time.

[00:33:54] Speaker 04:
But go ahead and wrap up, please.

[00:33:55] Speaker 01:
OK.

[00:33:59] Speaker 01:
I also just wanted to say about the criminal mistreatment.

[00:34:03] Speaker 01:
Judge Wallach mentioned that a CMIT has to be frightening to society.

[00:34:09] Speaker 01:
And in the Drowne case, I don't think that society would be frightened that the mother delayed in getting her or didn't get her child glasses.

[00:34:17] Speaker 01:
And I don't think that that falls within frightening society.

[00:34:21] Speaker 02:
You don't?

[00:34:23] Speaker 01:
No.

[00:34:24] Speaker 02:
Thank you.

[00:34:25] Speaker 02:
Society has no interest in children having proper care?

[00:34:31] Speaker 02:
I mean, to me, that seems an essence of society.

[00:34:36] Speaker 01:
Well, I think in a lot of these cases, though, it's because the motivation that the parents had was based on religious values.

[00:34:48] Speaker 01:
And I think that we, in society, give a lot of leeway.

[00:34:51] Speaker 02:
So supposing you burn the child at the stake.

[00:34:55] Speaker 01:
That might be murder.

[00:34:56] Speaker 02:
And it might be religiously motivated.

[00:35:01] Speaker 01:
Well.

[00:35:03] Speaker 02:
I'm just saying that you can take that.

[00:35:06] Speaker 02:
Thank you, Your Honors.

[00:35:08] Speaker 04:
Thank you for your advocacy.

[00:35:10] Speaker 04:
We're going to take this case under advisement and thank both counsel for their briefing and for their argument today.