that the da erred as to its finding about her conspiracy conviction under california penal code section one eighty two eighty one constitutes a disqualifying offense the key question raised in this case is whether that conviction time getting my mind around how a charge of conspiracy to sell or transport heroin would not be a controlled substance offense well you know that that wasn't the conspiracy charge that that was charged here what was charged w requires a conspiracy to commit a crime and that crime might or might not be a controlled substance offense might be murder but are you something that divisible and then just determine from the appropriate documents whether it was a controlled substance offense or murder whatever the object of the conspiracy was done or it's not divisible because the language of th statue of conviction itself right and it requires that you conspire to commit a crime and the substantive alarm requires the jury to know which crime that was so why are some thought divisible by reference we have cases saying that commit because you're under the incline language that one hundred to a one sets out station would would point to this court is similar to a variety of other like to freeze state statutes that panels of this court have found to be indivisible and therefore not subject to morry morning may please the court brian goldman for the in the key this court need not reach the burden of proof question that we've briefed if it agrees with petitioner that california's conspiracy statute is not w divisible in that no had nothing to do with the burden of proof there is no discussion whatsoever of the burden of proof in moncrief why why do you think it inconsistent or fatally inconsistent with your own for two reasons your honor first the fact that mark leave doesn't discuss the burden of proof is itself relevant because the adrian moncrief the petitioner raised the burden of proof as a reason that the case should go his way and the court didn't adopt that instead the court said our analysis is the same except it wasn't a cancellation case either it was a removable memory move ability case not a cancellation case and it didn't discuss the murdunna proof it seems irrelevant on at least two grounds so that that's incorrect your honor it was a cancellation case as well there was no dispute that removable at least as a controlled substances offender so what the court says in the first two paragraphs of its opinion and then again it page six hundred ninety two is that the question of whether he was an aggravated felon is relevant because that would govern whether or not he could seek discretionary relief from removal and what the court said at page sixty ninety two was having been found not to be an aggravated felon period without qualification he can seek relief if you satisfies the other eligibility criteria counsel several other circuits agree with our holding in young and including one that did so after moncrief they all wrong so the fourth and tenth circuits agreed with th moment as i that there isn't a post moncrief decision dealing with this question where under the modified categorical approach the record of conviction is ambiguous so this would be the first decision to hold the postmark rethought that's the case on the other hand there is a third circuit decision albeit an unpublished one that reaffirmed its prior precedent in thompson holding that where a record of conviction is inconclusive that means that the conviction does not necessarily establish the question of law and so once the legal determination is made that the modified categorical approach the answer to the question well what crime were you convicted of is a factual question so your responses to th robert first the fifth circuit recently amended the decision that i think you're talking about to add a footnote expressly reserving this issue because it wasn't presented and it's currently pending before another panel of the fifth circuit second it is incorrect an abstract legal answer to the question what crime are you convicted there is your honor i respectfully disagree mark moncrief how it's not a question of law without looking at i mean you have to look at a limited number of documents to say ok isn't transportation of heroin but that is a species of factual inquiry because you don't know as a matter of law that a person necessarily was convicted of conspiring to murder outside the presumption and then again a page six hundred eighty eight of moncrief the court addresses the record of conviction and says that he conviction will be disqualifying only if quote the record of conviction necessarily establishes the  rules are early case too but young right there isn't that the question and your position is that what just because one is removal in the other is cancellation and that makes a difference yes right right but maki seems to say you know burden of proof is not an issue doesn't make a difference i mean that's one way to read monk which i think the government where the burden of proof tips the government and the government has to show that non citizen is removable for a disqualifying criminal conviction and so the governor has the burden to show that picture but in the removal or the relief context there tips the other way and that is because of a statute congress enacted twelve twenty nine a c four which is typically states that burden of proof that statute also says render need a monk in that statute they should come the nonsenses come forward documents to prove their eligibility for relief and if you look at moncrief that know where addresses that statute you will find that statute in moncrief anywhere it simply was not talking about the relief context where that error tips towards a non citizen to establish their claims for relief and me talking and is noted put no to much and this is cited pretty frequently to state that it was somehow importing the burden of proof on the government to relief context as well but as the panel pointed out that is a just analyzing categorical approach and when a statute is indivisible and categorically overbroad and that applies across the board so of course in both relief and removal that can never fit and i know a statute and so that's not an extraordinary proposition footnote to you in no way was implying to overrule this congressional statute putting the burden of proof on the dream as laid out the approach for determining visibility and visibility hinges on the elements versus means approach an element of something a jury asked initially find beyond reasonable doubt and so an element is something you can turn to record a conviction to find his ways out separate crimes in this case and conspiracy you have an element is to commit any crime and you can look at the documents determine what that specific crime was because that course is divisible into determining all these different types of civic crimes and offense and that prosecutor has to show that specific intent to commit the elements the underlying offense there is a jury that empty and that satisfies the elements test and that's also confirmed by the record of conviction this case if you look at the document her rectification shows transport for sale trials substance that relates to a controlled substance at that point you would have an inconclusive record perhaps and they would fail they could meet their burden under young beholder and the government also argue that the record is conclusive if you look at that complaint the only controlled substances mentioned is heroin twice as much an overt acts it's mentioned second count which is ultimately dismissed so there's no possible way jerry could disagreed if this ever went to trial on that the controlled substance involved so once that statute is divisible general conspiracy statute you get to the documents documents show a controlled substance offense under control such in fact under federal law and she  no further questions thank you very much the third circuit case on the burden of proof jobs and the attorney general does moncrief in two pages on page one forty one and one forty three and he thought he wasn't sure and he  california which it was in nevada statute in that case and judge birds and wrote and i'm quoting that the universe to conspiracy statute is not a divisible statute that lists potential offense elements in the alternative and therefore this court need not missing element it can never be supplied by the modify categorical perch and in fact the only point they were trying to make her i agree your honor that case deals with a different issue nonetheless she did mention that it is a individual statute and it looks very much like the one that we're addressing here now the government actually replies to our first argument which is any conviction under one eighty two wouldn't count they don't really reply in the brief or in the argument to ours to our alternative argument which is even if we assume the argument that the object crime is an element you can't then apply the modified chemical approach also to the divisible object crime you if so if the object crime is indivisible categorical match so if the crime eleven fifty today only dealt with heroin then modified categorical approach the government doesn't reply and and perhaps for good reason because there are not there's not a lot of case law to support a contrary position the reason is because when you allege a conspiracy conviction you don't need to put all the detail in because the person is just sitting at their kitchen table planning on what they might do they don't know exactly how they might carry it out and so the prosecutor when they're alleging a conspiracy throw the whole statute in there or the statutes if it's a multi ethnic conspiracy and this case is a good example of that in count one they just say conspiracy to violate eleven rifty to a there's no detail as to how  or which part of the visible statute would be violated therefore the immigration and naturalization act would still apply to all the conspiracy convictions where there's an invisible categorical match whereas here there's a visible crime the modified categoric approach can be applied no earlier you mentioned that the drug of heroin is is mentioned in the overt acts it's also mentioned in count two which can't be even evaluated by this court because he was not convicted of counting as we know from people v russo the california supreme court has stated that overt acts are not elements of the conspiracy they need not be proven beyond a reasonable doubt only one needs to be found and the jurors need not be unanimous as to which one so any details in the overt acts cannot be relied upon to determine what the crime involved is because the petitioner would have no incentive to correct  as to the crime so if the count doesn't specify the divisible wrong then that's on the government because they didn't specify it appropriately if the count does specify it then the