think under the case one case that the government cited internationally you know bricklayers that the court has discretion in certain cases to consider improperly presented claims of error error where the appeal is not misled the issue has been fully explored have any analysis by the board even to review because in the board's denial of the motion to any man to consider the effect the response that really isn't anything to review if this court doesn't look at the at the board's decision in a motion for reconsideration so if it seems to me if this court decides that it can't consider the  board's opinion on the denial of the motion to reconsider probably what it would need to do is remain and the board of immigration appeals under ventura for them to actually analyze and  regarding the effect of that and whether or not the second conviction was the first conviction were second conviction that absent that there's nothing to talk about is that what you say i think there's plenty to talk about but i think there isn't anything much that in the board of immigration appeals decision to talk about they didn't analyze it they just referred it was a summary affirm and so they were referring to the immigration judge's decision and in  course of giving his decision he said well i don't have an expense before me so that i can see consider what effect that might have in this case that's part of his least his colloquial and in offering and or making brief that because the first charge controlled substance charge never required my client to admit his guilt or for there to be any finding of guilt of course i would like court to consider that different now but under the old statute there was no plea and there was no conviction so let's assume for purposes of discussion that it doesn't count so we're at the first first go around in one nine hundred ninety nine still don't we have the problem don't you have the problem that a trouble with three point four expungement leaves in place such significant collateral consequences to any conviction that it's not the collateral consequences registration i'm sure the court has that in mind i have a number of consequences of mine including that it can be used in future proceedings which is a a an enormous collateral  consequence it is however i think that in any event that is and in any event i think that it is equivalent at program once you are in a position where the f o a a procedure has been applied there are no collateral consequences it's it truly is as if you were never convicted whereas under twelve or three point four you can't say that so therefore equal protection purposes equal protection analysis and that's where we have to look we have to say where does the petitioner stand after the application of  say are they similarly situated one who has gone to trouble three point four is not similarly situated to one who's been through the ethical way well then i would say that there is no california diversionary program that would allow one to to be considered to be eligible for the first offender i think you're right i think so iraq then every case in which it was as been found that california has some equivalent to africa way is wrong well i don't know that there's any this is the first time i have ever argued to a television  that i agree with counsel that there is nothing before the court to review and therefore the petition should be dismissed because the petition for review was the was to review but his brief he raises he cites he gives three questions and then makes makes makes no argument in support of those questions no now assuming that nevertheless the denial of reconsideration were before the not require a guilty plea it did not require that there was no conviction there was no plea the old california procedure with which i have some degree of familiarity never involved a judgment of any sort of time isn't that different than voc a tourist situation or something where you do a diversion judgment centered you go through diversion program and then it's withdrawn or a conviction where you are you go for an judgment is entered and then judgment is vacated or expunged in some sense some limited sense as under twelve a three point four don't you see the old california diversion statute being different in a material way it's different yes but also the structures are so different that there never ever ever was a conviction i agree that there was no conviction but as l saying is that the old california procedure never got that far there was never a conviction there was never a judgment entered it was a everything happened before the entry of judgment and so judgment would never be entered precisely because the statute allowed for the diversion  seems to me that one has never been convicted and the other is not having to deal with the consequences of having been convicted and i think that may be different well you're saying it's form over substance  whatever type of statute the state has now you on also says that the individual had to have been entitled to having his last one we're talking about another ninety nine conviction think title to have that one treated as not a conviction and if p had and since had he ninety six had he had ninety six and ninety nine both times been in federal court the only way he was available to him would be under the under the federal law the away statute and as a result he would have he would have and one was the third situation it was a situation in which the alien was went through the whole the whole works including having a judgment of conviction entered and then that  by the government that since this is different than the federal statute because this is a post judgment statute therefore it's not the equivalent and therefore  for action before you can get really long get a second bite of the apple and when you say before which one are you referring to ninety six ninety six in other words the ninety six one does not have to be technically the same that's what lunas say it was never the less a procedure that allowed somebody who was charged to was not working out well but it's still this this was one of the three forms and the essence it seems to me of almost every one of these expungement statues is you get one bite at the apple if you're wrong on the ninety six then the other side wins if we get there if you got  i think i would well other than the point that was raised by you know i don't know which be honest about i had not thought of course i was fairly convinced on the on the well actually no you would then i think what you would have to do only intelligible thing that the board of immigration appeals said about their decision in the motion to deny the motion to remain the first time i've heard somebody in your position argue that they'd ever did anything intelligible but thank you  there if a defense attorney would tell his client his client said i absolutely am not guilty of this i was just in the car with this guy it was his drugs and now i'm charged with possession don't run the risk tak there's no inference that should be drawn from the fact that they took took good diversion and f away says specifically that you have to have been not recorded treatment under the this subsection which required agrees with the judgment and it certainly just discusses and cast well then let's talk about the castro paradis which says we don't talk about what theoretically or hypothetically might have been done what eligibility might have been the question is what in fact happened before we assess whether one status is the same or similar to another well i think that they what happened regardless to how the statute was applied there after what point in time that we assess is that yes and if that's if that's the case then we would have to say that one who has been on been through twelve o three point four has a