please the court and guess the sun for mr better because it could obviate the need for a decision on other arguments a focus on the remove ability issue and the categorical mismatch between the state and federal offenses and then briefly discuss  the issue of a particularly serious crime and my colleague mr little will focus on the due process violation for insufficient legal resources because the government does not dispute that a categorical mismatch exists between the texas and federal controlled substance statutes when the texas penalty group to a included over forty controlled substances absent from the federal schedules the only point in dispute is whether there's a realistic probability that texas would apply its controlled substance statute to conduct following outside the generic federal definition and there is last year and ask as this court recognized that are person deported based on a drug offense has to satisfy the realistic probability test and mr christie or rivera just like mr doing a self and mr vasquez all relied on what the supreme court called the application of legal imagination by resting on possible interpretations of statutory text made in a vacuum by contrast mr vetter did what each of those parties had failed to do which was to proffer police arrest records court documents briefs and court of appeals cases all showing that texas does in fact apply its controlled substance statutes broadly and aggressively without any regard to the federal schedules and sometimes even without regard to the precise items listed on the texas penalty groups themselves so the government now asks the court to extend hysteria vera and doing a salver as by adding a host of additional require that the defendant in the case be convicted the conviction occurred at a specific time relative to the state of the federal statute that a particular version of the state statute be enforced in a non generic manner or that in a controlled substance context the substances creating the categorical mismatch must exist on one particular state schedule and not the not another so occurred of the state and and texas to be mostly each show not just a reasonable probability but a strong likelihood that texas would and does apply its controlled substance statute in a non generic manner and harder where the accused was eventually co the specific justification that was given was to allow texas to quote stay ahead of drug dealers instead of vice versa and mostly the state announced its policy which is to always stay ahead of the game when it comes to controlled substances violations so that it wouldn't just act ahead of the federal schedules but in fact act ahead of those items specifically listed on the texas penalty groups so those cases have to show at least a reasonable probability that texas supplies section for eighty one dollars on thirteen of the texas health and safety code in a non generic manner of the government's proposed extension of deportee could only show a categorical mismatch by looking to the facts of his own case which is inconsistent with the categorical approach so it's important to remember that when doing a solver as help the party needs to show a realistic probability of non generic state enforcement by citing a case applying the state in a non generic manner the court was considering whether one could rely on nothing more than the statutes text or the text of the respective state and federal statutes and imagination on how the state statute could be enforced in a non generic way and so the choice was between showing nothing or showing something and so when the supreme court and when it's over a said you have to show a case showing non generic state important it was basically saying you have to make some showing it wasn't laying out a checklist of several additional technical requirements that th vetter was convicted of a particularly serious crime now we understand that the cert the rd circuit recently retreated from a locker based on the absence of other circuits joining but we continue to believe that circuit got it right alaka for two reasons st as a matter of language grammar and syntax in the statute and particularly serious crime has to be a subset of aggravated felony and not the other way around and nd the history and policy make clear that congress has calibration a particularly serious crime in connection with aggravated felony support it's being a subset of aggravated felony and not the other way around and so if we start with a and thirty one dollars b three b says an alien has been convicted of an aggravated felony or felonies for which the aliens been sentenced to an aggregate term of imprisonment of at least five years so we consider to have committed a particularly serious crime so that st sentence identifies two factors that together constitute a person a particularly serious crime a class of crime aggravated felony and a sentence like the imprisonment of at least five years the nd sentence then goes on and says the previous sentence shall not preclude the attorney general from determining that notwithstanding the length of sentence imposed and aliens being convicted of a particular serious crime so that nd sentence gives to be disqualified from withholding of removal not more and then a couple of months later congress determined that that had been a little bit too much and so  rebind a subset of aggravated felony is those with fewer than five years with more than five years and called those per se agger particularly serious crimes that was in the thank you your honor as my colleague indicated i'm going to really focus my time on the lack of due process in the in the underlying move all proceedings now i know much of this argument is undisputed the government does not dispute that aliens have to process rights movement proceedings that those due process rights include the right to adequate law library materials and that here mr venture was denied access to critical legal materials that he needed to make his arguments  now the government instead focuses its its arguments on the on the counter argument that none of this really matters because mr veteran managed not to waive any of his arguments so there's no prejudice but that's simply not how the prejudice test works but both parties here both the government and mr venture agree that the supreme court laid out the president's standard for when it can find individual is denied access to legal materials in the lewis versus casey now that case lays out the controlling standard as that a detained individual only needs to demonstrate that the shortcomings in the library hinder his efforts to pursue a legal claim such that a non frivolous legal claim has been frustrated or is being  colleague just made here mr vitter attempted to make that below but his his efforts to pursue it were hindered and impeded because he cannot make it without the the very foundational legal materials that he  and i want to be clear here these are some tertiary points obs your cases he did not have access to the federal and state schedules of control substances those are the most down foundational legal materials there  there are there are there the basic layout of which you mold a categorical up approach argument you show what's in one category what's in the other and then compare them but without access to either category he simply had no opportunity to to make a winning categorical approach argument and now what do we do what is the right what is right for him before this under speedy constitutional violation that fairly clearly meets the pressure standard of lewis versus casey well eighteen minutes so sure forgive me i have a tendency to speak quickly i have a tendency to speak quickly forgive me looking at his other cases mr better as a threshold matter we'd like to point out to the court does not contest assertion on page eighteen of the answering brief that a search of all texas state cases yielded not even a single case referencing let alone applying one of the three allegedly non generic drug classes or even one of the forty three specific subset of substances excuse me included there under that he identified and penalty group to which i ran that search again last night and it still comes up with nothing they're looking at the specific cases he points because it related to a version of penalty good today that was not in effect at the time but mr venture was convicted and the relevant time period is at the time of his conviction carter involved a version of the texas schedules that came after his conviction i believe in two thousand and fifteen is when the drug schedule came out it was relevant in carter and in any event carter's not even an example generally speaking of non generic application of a texas  because at the time that the defendant was convicted and carter the drug additional was federally controlled looking generally also to the to the point that mr better makes in his opening brief a page twenty one dollars and throughout his maybe to do so all of these types of arguments fall well short of establishing the realistic probability standard primarily because they at best invoke only a theoretical possibility of an under generic application  federally controlled as of april two thousand and fourteen which was the time that mr boucher was convicted and so the salient point here is that if you're looking at the texas forty one one hundred and thirteen d and you're trying to discern when mr boucher was convicted could that conviction have been for some non generic drug like butyl own well the answer is no because at the time of his conviction butyl own was federally controlled so there's no set there's no realistic probability that when this  over over broadly prosecute the texas statute at issue here does not get mr better outside the room of theoretical possibility of a non generic application and therefore fails to meet the basket standard which requires quote that he point to his own cases or other cases in which the state courts in fact did apply the statute in the non generic manner but he suggests sorry your honor was we were about to ask the question forgive me and to be sure the realistic probability standard should be one that involves looking at convictions as opposed to things like arrest arrest records the fact that the realistic probability test relies on looking to state court decisions strongly suggests that prior convictions and not just arrests are necessary this is an intuitive read of the realistic probability standard and also as a reading of it that appreciates the context where in this is a remote ability of removal based on a conviction for a crime relating to a controlled substance and the inquiry at the heart of this case is whether at the time of more tell the court very little and has the proverbial equivalent of convert comparing apples to oranges because without a conviction or also evidence that a court has upheld a charge there's no way to tell whether the underlying charge was even sort of the ultimately substantiated or could have been substantiated without speculating  and i should note as the court would like additional authority on that specific point which came to a head and the reply brief i am prepared to submit additional authority to the court on that point i did in preparing for addition in june of two thousand and nineteen in which the circuit nd circuit declined to rely on the rest reports without proof of subsequent conviction or a court upholding the charges which is consistent with the of the beyond a precedent decision that the circuit cited there regardless of all of us about whether we can rely on arrests or not precisely because of the question i answered for you judge higginbotham we need t court may not necessarily decide that issue because again the arrests at bottom are pointing to the substance of your lawn and as a mentioned earlier butyl on was federally controlled at the time that mr boucher was convicted so again the real his reliance on these arrests in this specific case don't get him anywhere lastly he relies on mostly to advance his realistic probability argument but but also is unavailing the mere statement by the texas court in mostly that a charging document effectively need only point to penalty group to a as opposed to a specific substance only gets mr belcher to square one of his argument which is ok there's a theoretical chance here that there might be a non generic application because assuming penalty group two ways too broad and if the charging document only lists penalty group to a law what if that could result in a non generic  conviction again this doesn't get us outside of the rhone the theoretical because he needs to show that the state court could in fact have applied penalty group in a non generic manner which mostly doesn't help him do because of the time of his conviction the drug  mostly which was excellent eleven was federally controlled i believe it became federally controlled as of may two thousand and thirteen for that matter was also federally controlled and mr mosley was convicted in his case so for those reasons you substance violation and last point to be sure and that we do not ask the court to extend or create new obligations for its off under vasquez but we're simply asking the court to apply to ask us here and it for the reasons i stated that not be an aggravated felony to be deemed particularly serious for purposes of withholding withholding of removal no circuit to consider this issue has concluded to the contrary and because the withholding statute is silent or in big us as to the meaning of particularly serious crime this court should accord children deference to the board's reasonable and permissible interpretation of this term all of the six court circuits cited in the government's brief and of its th a letter either or implicitly found that the withholding of removal statute is silent or ambiguous as to this issue i won't go through every single one of them but i'll just list that it was only in the southern circuit this is in chronological order nothing ghani in the  the agency's interpretation of the term particularly serious crime in matter and again and that was because the petitioner in not case focused his arguments on exclusively on the rd circuit's interpretation a particularly serious crime in a lo am but the language of the withholding over mill statute shows that i prefer it aggravated felonies are merely a subset of particularly serious crimes contrary to its power holding in a lock up so there is synchronization across the circuits on th that have considered the issue and as i mentioned earlier all of the circuits to have considered the board's interpretation of the term p s a or excuse me particular serious crime which would number five of the six  convicted by final judgment of a particularly serious crime full stop and then there's just the one qualification at the bottom that says by the way the attorney general doesn't have discretion in fact it's a per se i get particularly serious crime circuit that the aggravated felony plus five years of sentencing is a subset of particularly serious crimes and to read otherwise would violate the rule against surplusage which is to say that the fact that congress here has used two terms should point to the fact that there are two definitions for such terms of the wise why use the two terms and the beginning of the statute congress says that there is a turning generally decide that someone has been convicted of a particular so for those reasons your honor your the court should consistent with the other circuits to to consider this issue conclude that the statute is silent or ambiguous as to the definition of the term particularly serious crime and then proceed to a to the board's reasonable and permissible construction based on the language of the statute as well as the agency's long history of applying a circumstance specific and multi factor approach to these determinations to to decide whether a crime in fact qualifies as a particularly serious crime regardless of whether it was for aggravated felony has to be due process claim because mr boucher fails to make the requisite showing of substantial prejudice which is required in this court's decision and wore his due process argument that the department of homeland security's law library resources were inadequate to allow him immunity a meaningful opportunity to present his case here has assumed that he has these rights as the government processed before making the purchase argument although there exists a right generally and for criminal detainees to have an adequate access to law libraries and civil immigration proceedings  do not enjoy the full breadth of rights the detainees would enjoy in criminal proceedings but even assuming that this right applies to mr boucher he does not demonstrate that the alleged shortcomings in the library hindered his efforts to pursue a legal claim which is what is required to show per the supreme court's decision and lewis that case involved for the for examples of when someone can make that showing them the lowest co pointing to for example a complaint being dismissed in its entirety for failure satisfy some technical requirement that perhaps the detainees could not have known about because of the inadequacy of the access to materials or  the alleged inadequate that he's unable to even file the complaint to begin with to be sure that the lewis could decision clarifies instructively but it does not create a guarantee that inmates will become will have the the us a lot of low lying areas is completely belied by the record which reflects copious illegally complex creative and frankly impressive per se briefing which got him through approximately four years worth of that he single handedly brought the immigration court to a standstill for over a year at one point he prevailed on a stay motion on a petition for review that he had prior prior filed with this court which then was dismissed the respondents motion because he had prevailed on a motion to reopen before the board and got secured himself a remount of the immigration judge and he also prevailed and in on a direct appeal before the board to secure himself another and on review as the government notes in its opening brief he does not even contend that he waived or fail to exhaust any issues that he wished to raise before the court and petition for review so again against those backdrop the court i think would be hard pressed to conclude that he did not enjoy the limited guarantee announced and lewis of simply being able to be capable of bringing his contemplated challenges he certainly has shown just a few points in rebuttal your honour's the governments may not have conceded that there was a mismatch between the schedules but it certainly didn't argue it below and doesn't argue it here  asking the courts to extend steerer and add additional requirements as to the timing of the conviction that the conviction has to occur at the same time that mr better himself was convicted  doesn't say conviction just says the state has to prosecute it and so those arrests for be a loan that started the process for prosecution and when he was eventually convicted the fact that the substance bu mostly was put on the federal schedule doesn't mean that texas doesn't have a reasonable probability of non generic in force just means that the feds caught up before his conviction actually went through but the conviction and or the is in trooper taishan we would just ask that this court do a robust textual analysis itself as several of those circuit circuit courts didn't do when they deferred our position is that the statute is not silent and it's not ambiguous that those two sentences are very clear in setting up a system and the history supports that in setting up a framework in which particularly serious crime is the subsets of aggravated felony and not the other way around it's not surplusage to say that just because it has two terms the one must be a subset of the other the other could be the subset of the one and not is argument as far as the due process points on the n word case and that mr little discussed said that the person needs only show needs only make a strong showing in support of his up haitian it doesn't need to show that he lost and would have won for there still have been substantial prejudice  and this idea that just because he did a good job below the government should be absolved from denying access to legal materials and that that's just that's just was wrong i mean  itself and just because mr better was clever enough to preserve all of his arguments doesn't give the government a free pass to deny him access to the materials that he seeks or that he needed to make its case and so