removable office because the oklahoma controlled substance statute question was overbroad indivisible and controlled substances that were not federal controlled substances you did not analyze the statute in their decision but erroneous they stated that a comparison of the drug schedule showed that they were identical you know i have a i don't know what prick what principle says that the categorical approach pass could be applied strictly and rigorously to be identification of drugs and controlled substances statute i'm i'm probably just you know baying at the moon but it seems to me that when a legislature criminalizes controlled substances the fact that they're very specific because each of those substances may carry a different range of punishment they know what they're doing and you know the fact that they overlap with specific drugs listen federal offense may ought to be maybe ought to be the and the story well you're ultimately that's why we categorical approach because state statutes are drafted by state legislatures they have different requirements they may have different elements and certainly the substance is controlled by individual states may differ from the federal schedules and what they're still highly identifiable there's no question about common law meanings and you know shades of intent is something intention is something beyond the scope of the common law and so on i mean you know it's illegal to distribute cocaine it's illegal to distribute marijuana i'm just i'm just posing a hypothetical cause it's probably been overruled somewhere but well your honor i would say you know that's an issue that the  miller court had to look to in the lay there examining the state statute in which the schedules controlled substances that were not really controlled but because the immigration law specifically ties from the ability to a controlled substance that's listed in the federal schedule so it is part of the definition of twenty seven because of that requirement within the law we must demonstrate and we must apply the kind of or all probes to show that a state statute ties the office to a federally controlled substance and again because of differences in draft a particular states may not give you you know these s if this city that your honor seems to feel is inherent in most control this is this particular well so i guess a first maybe m petitioner of course takes great issue with the introduction of that test as i don't believe that it's supported by case law now under an overview of the legal issues presented the court has to determine primarily the issue of whether the statute is statute but i want is not further divisible a one says it shall be unlawful for any person knowingly or intentionally to possess and control dangerous substances unless touch substance was obtained directly or pursuant to a prescription so far intents and pointed to what can the state now watkins to be honest addresses the statute directly proceeding the one that responder petitioner was convicted under however that statute is structured almost identically gives you the office of the substantive ranges based on whether it's of a certain schedules or not now what kind of pills found that a person who possessed two different control dangerous substances at the same time was not committing two separate offens suggesting that the controlled substance identity is doesn't element of the statute rather that any controlled substance will do therefore it is a means to commit the offit is not element of the offense and although the what decision  i do not know if the jury in this case but clearly punished punishment is the punishment ranges tied to the identity of the drug right well the punishment range is tied to drug schedule there are a select number of tru that are specifically listed in the punishment portion of the statute if for example marijuana deaths and i rate it up yeah that's separated out but you know like there's a different between crack cocaine and methamphetamine right well actually yes your honor and there's always a sort of difference in the punishment of those substances right depend at least depending on quantity or maybe just the identity of the drug well you're under no not under the oklahoma statute statute makes punishable possession of any schedule one or two control i understand that but i'll bet you go to jail longer for possessing methamphetamine then you do for now because the decision in this case ultimately has already been rendered by the oklahoma court of criminal appeals our inquiry and you know the president tells us that there's no need to go into the other methods of dividing whether th article for the reasons judge chose you you mentioned marijuana and we had a brief discussion about the fact that marijuana was named separately in the statute well many of the cases that the government has cited for this proposition that the substance is an element do with marijuana responder petitioners oftens what they considered to have as an element the substance that was test that now binds us rather that plaintiffs alvarez warned against the application of legal imagination to say look here's this test this is how you apply it it's intended to produce fairness it's intended to produce uniformity but it's not intended for you which is one of the substances that differs between the oklahoma statute in the federal scandals the first arrest happened in north dakota so that same conduct in north dakota would be able to make a realistic probability tests but in oklahoma because we don't have a state court different well depending on where you live in the country that may not be true because there's a widely publicized prosecution for this in north dakota the very first one in the country but there's nothing similarly publicized i divinorum so this isn't forced and there's no argument that oklahoma has somehow less power to force their black letter law than want to go to cause you a little inconsistent in arguing the realistic probability doesn't apply well at the same time arguing it doesn't matter what those controlled substances you know our i'm a merely responding to essentially the decision of the board of immigration appeals which first said you know made this alleged divisibility analysis and found the statu you know well you understand that but you're taking the position that it doesn't matter what substances charge because it's just a matter of the scheduling and then you're saying at the same time but selby is special and realistic probability test or as this is a decision that the court may be make it we argue against the institution of the test or the acceptance of the test that the board has put forward and also argue why the test would be in opposite to the ok thank you you have time statute and the federal generic definition in this case but even if there were no categorical match the government prevails and your math is because oklahoma struck statute is divisible as tight starting with  the court in that case how that the realistic probability i'm approach applies where like here this statute is facially overbroad in this case there are two at least two controlled substances in the oklahoma schedule better not federally controlled therefore the oklahoma schedule is broader on its face however because rivera dictates that the defendant excuse me the petitioner must come forward with evidence that the oklahoma is that oklahoma actually prosecutes cases involving those two not federally controlled substances the part of the court were to do appropriate research and come up with such prosecutions that would suffice would it not because it would just simply be research of the law to see what their i believe is so special because it would be i didn't know i believe  suggested that that the burden would be on the applicant to come forward with evidence of cases but i believe that if if you know that the government did its own independent inquiry and i think that the court would likely do its own independent inquiry if and if there was evidence perhaps on the in that analysis would be different however at this case the petitioners had years to come forward with sense evidence and relying on sort of national statistics of government in this case the government prevails because the court may proceed to that modified categorical approach consult the conviction record and determine that in this case petitioner was convicted of possessing cocaine which is federally controlled and the reason that the court can proceed to the modified categorical approach is because the drug type in oklahoma is an element and i want to start with in math there is the court said that there's several authoritative state law points that the courts can rely on why news case law another is to face of a statute and here the state  face of the statute is set up so that subsection a lays out sort of the substantive provision of prohibiting possession of a controlled substance in subsection b as your honor judge jones indicated sets out different penalties that attach to pending on the drug type and the supreme court in their prime the made clear that whenever there's a different penalty attach or an increase in penalty based on a fact that fact must be an element that the jury decides beyond reasonable doubt and that approach and also i'm sorry going back to the face of the statute the oklahoma schedule of controlled substances list  list of all the controlled substances that are prohibited in the state it's not an illustrated list it includes the you know the full universe of drugs that are prohibited in oklahoma and under mathis that is also an indicator  state authority authoritative state law that with say that drug type is an element moreover that this that another indicator that judge type is an element is the  jury instructions in oklahoma which are binding which have been adopted by the court and by statue are binding on the courts in oklahoma and the jury instructions indicate that the jury must specify a controlled substance in the singular this is a fact that the ninth circuit relied on in martina's lopez by which i cited by twenty a j i have to indicate that because the jury had to specify one controlled substance to the exclusion of all the others then the jury had to agree on which was at issue in the case so we have the face of the statute we have jury instructions and turning to the case law in  oklahoma i believe that there is no definitive answer in that case i think that there are cases that go both ways to start with cox if you stay said that  the statement i possess methamphetamine was a factual basis for every essential element of the offense including the specific element of the controlled substance so we have a two thousand and six oklahoma criminal court of appeal case telling us that the controlled substance methamphetamine in that case was an element as the government indicated in its brief we did find a case watkins which may seem to go the other way however the government argues that watkins is distinguishable for two reasons one because it's addressing a different question it's addressing whether the oklahoma legislature intended to punish the same defendant twice for transporting a single package that contained two drugs in it and you know the court looked at the structure of the statute and said well subsection a lays out the substantive offense and therefore because subsection a which is the substantive offense only uses the word controlled substance the legislature couldn't have intended to punish the defendant twice for that single act that isn't into the question here of whether the drug type is an element whether the jury has to agree on which drug the defendant possessed moreover watkins is an element that the jury must find beyond a reasonable doubt and in watkins the court acknowledged that the defendant possessed cocaine in p c p and that cocaine carried higher penalty than p presented with the same argument at the petitioner raised before the court so below petitioner argued all of these substantive substances were not controlled an oklahoma but not federally controlled well turns out to petition or petition appointed to drugs that were federally controlled so that's what the board was deciding but in any event the poor it is it's her arguing in other words they argued before the board a different group of drugs and they argue here there's no overlap you're right you're  assuming there's no where you are that the board's expertise is limited to the interpretation of the i am not state statutes and so the government believes that the court is that it would be proper for the court to decide this issue b fore the board i mean it really you know where you know the argument one argument this is a little messy because one argument is that we couldn't use the modified categorical approach under se c v the board didn't use the modified categorical approach but the obvious response to that is the board didn't have to consider the modified categorical approach because the only drugs they argued about were those that are have exhaustion rules before the board or and but in terms of that issue i don't think that it would violate generally for the court to decide the issue in the first instance because it's an issue that the court season if a board does not have expertise over and is to review did no vote in so we believe that the court can decide this is issue in the first instance so i'm not sure that that's a full response but that's certainly one respon i'm so turning back to this the state law in oklahoma that i believe that it is not definitive we have cases we have an outdated case white kids that seem to apply law doesn't tell you the answer then you should look at the conviction documents in the record for a peek as to how the prosecutor in fact charges the types of cases and in fact mathis sat that complaint that charges the petitioner with possessing cocaine to the exclusion of all the other drugs and therefore that is indicative i know the mathis analysis of the drug type being an element and not  but just for the sake of candor we had a bench memo in this case on the bench memo site a and allege prosecution of salvinorin a in a case called oklahoma v thomas  docket number see if two thousand and eleven hyphen one eighty three oklahoma district court april fourth two thousand and eleven well your honor we still have that ok so i did as independent search and i didn't find anything however if that might have been a charge and maybe they pled out to something else i don't know i haven't gone beyond what the citation one while i believe that you know the court doesn't really need to decide the issue of the real estate whether the real estate probably ties applies in these types of cases because i think that mathis issue that they modified categorical approach absolutely applies and we can consult their conviction record which shows that petitioner was convicted of possessing a federally controlled substance controlled substance conscious and the board themselves the members who looked at this case made a similar error they failed to find what the government readily admits are substances on the oklahoma saturated that are not controlled federally but i do have to say though we apply the exhaustion rules as rigorously to the b o i a more probably more rigorously than we do in any other administrative context and it seems to me a buried big thing because you can't substantive argument was ever made by the government that this jet shit was divisible that a realistic probability to have was that i didn't have to because because under the rules before the board you have to state your precise arguments and all they had to respond to was a list of substances that are clearly scheduled to or whatever they are under the federal law as well but if the overarching argument your honor was that the schedules went on a match then the board was on notice of the argument that the petition was making all the board doesn't have to respond arguments that are theoretical and not presented to it on the ng i mean if you if you held us to that standard we would be deeply embarrassed on some occasions shareowner prior townsell did in fact attach copy of the of a copy of the oklahoma controlled substance schedules and a copy of the statute and did as much as possible to preserve this argument while you know admittedly erroneously identifying some of the substances that were non generic matches however a good petitioner would would urge the court that at this at the beginning of this case you know it is the government's burden to prove that a petition or spawn in an immigration proceedings is removable and yet in this case the government found nothing but the conviction documents federal schedules and that put the put on notice of the argument and of course because the issues de novo before the board and again surely legal question which is a no before this court i do not believe that any waiver could possibly come into play that prevent this court from determining if this particular statute as a question of law is a categorical match for a federal controlled substance well if you'd like to think you're doing such a good job for your client if you'd like to file a twenty two a letter with a couple of citations to support your argument of non exhaustion i'd appreciate it absolutely  that watkins is time transporting and if you have you in other words you only had to prove one to convict the defendant of transporting right yes but your honor if each substance was an element of also a separate office then that person who when watkins was charged with two different offices would have been guilty of two separate offenses but what the court found is that the of these substances were not elements there for you if you were defending a person in oklahoma criminal court and they were charged with transporting a controlled substance you do not think that they did but the that the government would be required to prove  exactly what controlled substance it was right o'kane p c p l s d salvinorin and so forth you don't think that would have been required to be proved the government would just say here's says brown you've got more than enough time we had five minutes in addition to another minute so anyway since your pro bono we appreciate your service you've done an excellent job advocating for your client thank you very