under the the second is whether it was an aggravated felony under the i and a and i'm going to start with the second question because it was that upholding by the v a that mr martinez was an aggravated felon that barred him from any further discretionary really if it was merely a controlled substance offense that he had been convicted of he would have been able to make a showing based on length of time the country of his connections to the country that he was entitled to discretionary  of some of the state law let me make two points on that the first is that all of the new jersey supreme court cases that's that we've seen they don't they don't undermine the hold in inform you know which is the case that tells us that very yes that they have diverge so much that we should understand new jersey as well or categorically then the federal but how much can we case which comes before or for often by the time we get the fear of the court saying we're going to court over winter holmes your preparation is a question of degree there's a line drawing why isn't this all just in the process of trying to draw the lines between  preparation and substantial step so so it is your honor and let me make two points on that the first is that the new jersey jury instructions very very clearly say that it is only very remote preparatory acts and that comes straight out a form you know and those jury instructions are still used in new jersey courts to this day compare those to the third circuit jury instructions which require mere preparation or more more than your preparation that's on the the the remote preparatory x versus preparation point we have another argument here on is not has to do with solicitation and i think here is even clearer that on that spectrum we were just describing solicitation falls further along the spectrum towards inactivity i'll call it that then the federal class under federal law that been held by multiple circuit courts of appeals conduct of politicization does not give rise to a half liability and under well there's a difference between saying jersey folds it into a tent that the folds solicitation into a temp so the only solicitations that can be prosecuted and convicted in new jersey is the subset of them that already require substantial step that is strongly corroborative  literally asking two persons who were not involved in the crime at all so move a couple of arles of toxic waste across the street and that was the crime that was the acts that gave rise to the attempts liability it was found to be a substantial  i'm not sure it's right or wrong but just cross as a powerful point that if the model you know code when terry suggests here's an example of the ten years just certain kinds of station and qualified and i thought when we started our conversation you agreed that subset of the temple so so what we have wonder what we have under here are the rules as we see it right under federal law attempts liability attaches on something more than your preparation that liability and the crux of our argument is that under new jersey law what is punishable under the attempt is mere solicitation and that can be true even if both jurisdictions or both regimes derive their where we have complete overlap on those requirements why does it matter if it's called naked or mirror in the context of new jersey if i think so to answer your question rather that the facts of the federal case and say this indicate that in fact covered by the news that you to make it broader than the federal bench i cannot find that in the statute i can find those cases being prosecuted so why should we believe that new jersey is in fact despite the words of a statute that to stay with this issue or address briefly the controlled substance point so so let me let me as briefly as possible address the controlled substances issue and here are what we have is really the party talking past each other in a very real way and if we think we think it's pretty clear that the boards rulings can't be upheld on the basis that the board game which is that there is a categor match between federal law and the jersey law and that setting aside a realistic probability consideration for the time being what we have now in opposition to to our petition the government  we don't read i mean in fairness your honor we don't think that's a particularly fair fair reading the opinion here the government had every opportunity to tell us of that in this case the board had every opportunity to tell us that it was re lying on a on a former federal schedule it didn't do that it did acknowledge our argument and then it went on to say without any without any further commentary that the in this here indicating that there was a historic scheduling issue that there's any distinction between what we were comparing which is the current jewels and new jersey law and and and what the government was doing  read fairly i believe their opinion is going for another rule which is a good enough rule or a close enough natural and they didn't get it and now they're trying to resurrect or have an affirmation on another case that there was a recent opinion  that's that the court has received some rather briefing on concerning this issue and that's the recession's station the second circuit the only point i want to make out now is that there was basically eighteen months between the close of briefing in our case and send it up through judicial review in the process that should be followed under the ministry of procedure as we know it here i think that at minimum we're intitled to actually get some rule maybe some actual rule making from the from the board on this  the substantive questions but ultimately we think the waiver point is critical here and it doesn't mean the outcome will be the end different necessarily but the board is asking you to make determinations as a matter of law to how the i a e a should be said this this matches almost exactly and that's sure they should have done a better job of looking at it as a whole they compared the schedules they said this matches up and that's that's sufficient i'm not sure you're on is where they got that language or really why they even needed to say that the broader point is that a fair reading of that what they did right before they get into that sort of alternative ground compound derivative mixture of preparation which contains any quantity of coca leaves in its list of controlled substances yes john that's language i'm referring to that's that's sort of the kind if you fact they have been referring to the schedule that mr martinez arguing for they would have not been able to say that because of the i would clean change precisely your honor that's the comparison that they did if they were looking at the twenty fifteen schedule is really about semantics it's about label that we're using to describe in a very generic manner what federal courts and what new jersey courts are doing and so when we use the words  solicitation for example that's not how jersey courts apply so the situation as a police judge the this pointed out new jersey has murder solicitation are folded into its definition of attempts and that is specifically to juries because i look at all this language about preparation your preparation remote preparatory acts i don't know really what he is that means if you look even at the court's pattern jury instructions to talk about  plans to are some preparation for committing that crime that's the charge for a town what are some plans versus mere preparation versus remote preparatory acts and so for me i've dealt with what do we tell juries when we're instructing on this to try not to use them and so they said well we probably shouldn't explicitly excluded your preparation what it whatever that means however they still instruct on there must be a substantial set up and that must be strongly corroborative of the criminal purpose and looking at every new jersey case since then they may give some sort of a step and it was strongly cross of of the criminal purpose and so it was really about just what do we tell the jurors to try not to confuse them when we use these words such as your preparation of a juror i facts of the case are here preparation and that efficient to convict the defendant in this case of an attempt in new jersey and then applies to solicitation as well in all of these cases they find that the facts were extent that's what the court does not actually answer the entire aggravated felony question because the hypothetical federal felony of which mr martinez is presumably been convicted actually requires the presence of a controlled substance under federal law and so you actually need to answer the controlled substance question in order to determine categorically that he's been convicted of an aggravated felony and i'll just repeat briefly what i said in my opening remarks that is going to letter ten days or so after a briefing had actually closed in this case and what pereira tells us is two things one it doesn't actually tell us which federal schedules to use it tells us which state schedules to use because at that time in that case connecticut law had not yet removed a substance as of two thousand and ten from a schedule that the federal government had removed in ninety six so all that for error is telling you is you used the present federal schedules and you compare them to that state schedules that were in effect at the time of the defendant's conviction and we don't disagree with that of course you're going to have to look at the state schedules to determine what the defendant was convicted of because that's that's a we from a realistic probability basis right now so i don't i don't want the this court to for me to leave this court with the panel thinking that we agree that the only way to undertake a realistic  for my colleagues or for mr george's colleagues reason for this court's clerks to like run some searches on westlaw there might be other ways to do that and i think it's important to acknowledge that v a has made that clear in the past that a realistic probability so we think the argument will make them for the v a when they're when they're doing the rule making is that a time of the board's decision is the appropriate is the appropriate time that that's  consensual sodomy laws from the books in a lot of states and what happened in chavez operas i think is important knowledge which is that the defendant in that case was convicted of consensual sodomy in two thousand in two thousand and five we know that lawrence v texas said consensual sodomy laws aren't constitutional unconstitutional in two thousand and ten or it may have been a couple years later this court said oh well that can't be a crime of moral turpitude that the court looked at the present definition of crime of moral services the one that incorporated the supreme court's intervening change in law it didn't look back at the year two thousand definition of crime of moral surfaces to determine that it was a removal offense so i just like to point out that the the issue is not as cut and dry as even the daily sessions court makes it out to be and it would be inappropriate to decide this case at this point on the briefing that the