this case presents a singular issue of interpretation of the phrase relating to a controlled substances the fine under the controlled substances we believe that this phrase  is reasonable of interpretation and in fact the point which is at issue in our case is not ambiguous in the least which is as the find under section one of two of the controlled substances precisely we think statute of conviction as in the case logically connects with the control of illicit substances generally in other words that the statute of conviction is one that is designed to control illicit substances we do not dispute and have not disputed from the beginning that the sense of a new crime of paraphernalia in fact relates broadly to the illicit substance that is in fact a controlled substance under section one of two a federal controlled substance under section one hundred two of the united states code because to do otherwise would create a number of anomalies that we think would be against the intent of congress as they wrote the statute so first we would argue that the statute in this regard is plain there is a definition there and that definition has to be given meaning secondly we would point out that that definition is actually needed because the states and foreign countries which you can also be convicted of a crime relating to a controlled substance  law a foreign country must have some anchor it must have some base must be uniform or otherwise you're going to have fifty different states plus all the countries in the world with different lists of controlled substance so it has to be connected to something and that's something that congress chose was perfectly rational it's section one hundred two of the controlled substances act this is also a position that we believe to be a agrees with where the ironic position of being a petition or in a case where in fact the b a a has held our way publicly and indeed the same individual board member who ruled against us and our case we look to the circuit court cases across the country we don't see any that are against us indeed some of the arguments or some of the cases cited by the attorney general in their argument we agree with and particularly we would look to the side the rick a c which is a case very similar to this from the seventh circuit and in that case the court held that the  lookalike substance of solo sided was a crime relating to a controlled substance we would agree why because civil side is a controlled substance under section one or two the controlled substances act and indeed when they're controlled substances it's immediately at the seed that's what we're arguing finally any other decision such as suggesting that you know close enough is good enough if the lists are close enough that it's ok ignores the fact that if you don't actually prove what that substance is or over time these things will change these are dynamic statutes and most recently the states added a number of offenses regarding various kinds thirteen the rule of the last antecedent is a principle the statutory interpretation under which a limiting clause or phrase should ordinarily be read as modifying only the now or phrase that immediately follows now if you look at the statute you'll notice that the relating to a controlled substance as defined in section eighty two immediately follows law or regulation it does not follow conviction so if you're convicted of a violation of a law that no matter what you did if the law related to a controlled substance and that would cover this case because it certainly does relate to controlled substances then you can be said not to cry only twice in the last century the united states supreme court has reversed the search circuit performing in the same grammatical trap and the trap was it didn't could have no conviction under the pennsylvania paraphernalia statute that would that would qualify because categorically the part of a new controlled substances are not the federal controlled substances substances as the find of federal law no no it relates to controlled substances as the find under pennsylvania law which may  nobody probably relates to find trolls overwhelmingly probably the not certainly you know overwhelmingly there is a similarity between the substances listed but from a legal point of view they're created by two separate bodies and there's nothing connected to them i'm not suggesting that the court take that view that just because pennsylvania is not identical to the federal that therefore we throw out or all of the that is that a conviction under a pennsylvania paraphernalia statute may not be a conviction that relates to a controlled substance but the law itself is relating only generally to the control of illicit substances and to go so far as to say we're now not going to pay attention to what a state less as a controlled substance and we're going to make you deportable for that subjects you to fifty different jurisdictions in the united states not to mention that in a foreign salute over well i'm at a loss on that one because as i understand that the the idea of uniformity of the portable offense is something that is if it  is baked into the d n a of the immigration act the texas should not be a should not be deporting people for offenses different than offenses in pennsylvania and i would think congress would intend to hav go first under the statute we don't you do you agree that the first place we walk is the law under which in this case mr rojas was conveyed yes i would i would go with  prong test first you look at the law and you ask because you asked the court would ask the question is this war generally related to the control of illicit substances what you need what do you say you need to do second the second you must show that the conviction on which the non citizen the the offense for which the non citizen was convicted of must be based on a conviction in which the substance was a controlled substance under federal laws to apply to the united states it doesn't it needs to apply to the conviction because that's what's uncertain what's uncertain is what was this person convicted of if used convicted of poppy seeds in the united arab emirates that's a completely correct so control substance has the that is and that's the seven circuits interpretation decide that's exactly what they said it can't be jelly beans it has to it has to be it has to be a substance that is listed in the federal substance and let me point out and i think this is an extremely important point to make in a properly prosecuted case this is not an issue in a properly prosecuted case you're supposed to in pennsylvania the immigration court level the government could not prove their case and said it didn't matter and then it goes all the way up here and now we're being told we'll go back we'll give them a second chance to show you know isn't it true the agency applied the categorical approach that's what they're arguing here the agency what what did the agency do up to deploy the modified categorical approach well we're actually at the immigration court level i don't think they thought about it all this carefully i think what they said is it doesn't matter and then it went up to the b i a but all along were has to go back to zero why why would it have to go back down if they had the opportunity to prove their case and they did not and gold didn't have a chance to go back down and prove that the substance and goal was  categorical modify categorical is in your mind resolved and at least one other house thinks that it's modified categorical which i happen to as well then isn't the thing that has to be done you've an argument i presume that it wasn't either or probably die just probably looked at or are probably considered ok so now we have to remain and so that it can be properly considered because it certainly would seem to be a question of fact it can be resolved in the first instance by the i j and then the b i a can review whatever determinations made it doesn't agree in a way i would x respectfully  and for this reason we know what the record of criminal conviction is here we have it what we have is a police complaint a complete police complaint that was not signed by a district attorney it was issued seven months after the alleged event our client i mean essentially what happened here was our client was he to summons in november he shows up at a at a district magistrate office and as you know in pennsylvania a district magistrate only did it so we have to be lawyers what does it mean when you have a record of criminal conviction that's reliable versus not reliable we are not allowed to introduce evidence in the immigration court contradicting the conviction or we can go and say ok this is the record of conviction the real direct you know it shows that he pled guilty or he shows he's guilty of x we can't say that this was a plea of convenience we can't say that you know they never really had the rabbit suit so we did this a paid one hundred dollar fine and walk out of the room or we can do is say this is what's in the record of criminal conviction and in this case it doesn't show anything more than x what does this record of criminal conviction show other then that he pleaded guilty to a paraphernalia statute well it anybody to practice any kind of criminal law what goes into a police report a part of it may be right part of it may be wrong it's as it gets willard into trial you begin to see what the real evidence says if in that report yet oh i see there's garcia where that there are a police criminal complaint was introduced only because it had you know the the extra in this year for liability which this does not have or you agreeing it's got to go back for those folks but that seems to me almost like a mean they miss i mean what could they possibly decide other then to to dismiss any what else is there for them to decide here think you know say it wasn't your disagreement with what you've been asked t enough to the c s a it was not the purpose of that was not to regulate illicit substances and so therefore categorically it would be i think the court used that example and receiving stolen property to the case well in that case it was but in that case you race i mean they had all the opportunity well they just evidence just isn't there the court and the board of why the categorical approached analyzing the nature of the steroid hostas conviction i do the categorical approach we compare the state statute of conviction to the federal numerate ing definition without reference as actual conduct now as we've talked about here the federal definition uses the word relating the phrase relating to a wide variety of cases this court has recognized that the phrase relating to must have an expansive meeting and must be interpreted to cause a compass any and offense that is associated with or has some logical connection to the elements of the federal definition the court has rejected the idea that there must be an exact match between the elements of the state statute of conviction and the federal definition and dennis the court said that relating to does not demand approach a precise degree of similarity the court said that unless the words relating to are of no effect they must be construed to compass crimes other than those specifically listed in the federal statute now the provision at issue here references state laws relating to federally controlled substances the legislative history of this provision reveals that in one nine hundred eighty six congress replaced a more specific list of activities that were related to drugs with this relating to language and that this indicated a congressional intent to expand drug offenses that were going to be grounds for deportation basically congress concluded that any offense that was related in any way federally controlled substance should make someone to portable recognizing that such individuals should not be given the privilege of living in the united states now here we're looking at a drug paraphernalia statute which is distinct from a simple possession statute as opposed to simple possession of drug paraphernalia statute is addressed to the actual use consumption or manufacture of controlled substances in order to use manufacture or in any way handle a controlled substance you need to use items of paraphernalia even consumption of drugs requires some form of paraphernalia to introduce the substance into your body paraphernalia statutes criminalize the possession of these items in order to put additional barriers in the way of drug use and to hopefully prevent or reduce drug use the paraphernalia statutes are intended to control the use  federally controlled substances as well as any anonymously state only controlled substances the focus of a paraphernalia statute is on the items of paraphernalia not the particular substance those items that are criminal can be and are used with any types of drugs and in most cases they will be used federally controlled substances using this expansive meaning of relating to and recognizing that the paraphernalia statute at issue focuses on items that are not brought specific to board properly concluded that pennsylvania's drug paraphernalia satch you categorically state law relating to a federally controlled substance this court reiterated its prior dennis reasoning that you don't need to have a match between elements of federal of the seat statute and the federal definition when the word relating to it said the court looked at not connected to visually connected or related that the prescription drug act criminalizes a broad swath wide range of activities that were of no concern to federal controlled substances and  the statute aren't you basically are you basically reading out of the statute the parent the tickle no i mean i'm allowing that parent that occur in there and as i said drug paraphernalia statutes are mainly designed there it is a police complaint which as your honour's have discussed may or may not be reliable in this case but the board decided the board decided the case just based on the categorical offense and not right so then then suppressant which pennsylvania puts on the dangerous substances list or controlled substances list but your your argument suggests that now judges would be looking at these wrongful chemicals to designed to regulate the use of federally controlled substance that that's not what the statute says it says controlled substance as defined i mean if the state statute is a total match with the federal then it would little not a specific the board did use the categorical approach and said the statute as a whole the pennsylvania sat you is designed to control the use of federally controlled substances as well state controlled there is that we're saying that there is no need to show an analog and want to hear if you able to if you can show as in this case that the state controls most controls all the federal substances are designed to work in tandem with any most cases they do mirror the federal control the schedules of controlled substances near each other they don't precisely the point that if you really push back again and again look the supreme approach is slightly different in the context of it relating to statute because the relating to language broadens out the inquiry and you no longer have to have an exact match between elements it's of us to know that in the federal offense how do we get link to back up right now or are you saying you know you're saying because the state that the way the federal drug system works is the federal government has set out its controlled substances act but it allows the states to regulate drugs as well and th of approach no it's different when the when those statute when i in a provision includes this relating to the courts this court in part dentists drake's and also barone has said relating to broaden trans anything having to do with controlled substance but one controlled substance then it's modified specifically by as defined it doesn't say a controlled substance or something relating there to it says controlled substance as defined so you're reading you're relating to it to carry a little bit more water than it actually does and the plain language of the statute the law again the statute that would be i don't know the board has an address that i could meet yes or no so that's what i would say it's different because jelly beans wouldn't meet the federal criteria  this is really the real difference because of pennsylvania instead of a freestanding statute we're going to put in the our controlled substance drug device and cosmetic which is the name of the pennsylvania statute we're going to put in a section that says the jelly beans are controlled substances and rojas got convicted under that statute now what would you say is that a statute relating to controlled substance i would say no because it's not designed to control pennsylvania less schedules those schedules have the same criteria for inclusion that are the federal schedules do and in fact they are mostly how did you get him how do you get if you said jellybeans no under my second example i did you get to the actual conviction to make a determination that the substance he was convicted of didn't come under the federal statute if you get there you're under your busy gratitude to stuff he's was convicted under different colleagues your abs are ever says that if we apply it and that's the end he wins we go home some of my colleagues and i have suggested that no it would be reminded and that one of the things that could be taken into has to be remanded and if so maybe we may may we order or suggest that the police criminal complaint be taken into account this yes i would agree that you had a girl approach is not the way to go here that it should be remembered for application of the modified approach the board at the time it issued its decision the board had a binding published precedent that's been it was a case holding that drug the board to reconsider the case and probably remain in the various reasons is there a reason why the government did not present that evidence and i don't know i don't know i mean if the police report was there yes and the  major chose to use the plea of guilty and only the plea of guilty to make his his or her decision yeah it's a fairly accurate if but if the government had the information that the paraphernalia was things in that first if this were his only conviction then the government would have had just so evidence that it was not there was more than thirty grams for personal use but because he had a prior conviction it didn't matter how much if it was marijuana it would matter how much had a prior conviction on a separate occasion for marijuana meant that this conviction it doesn't matter if it was marijuana or not it would render him removal as far as the remaining goes in the police report the immigration judge should come in this case it's linked together with a charging document i think in the pennsylvania law but this would be something the immigration judge could address on remand can i ask you how does how does the government's position here reconcile with his position but i understand that in the government argued advocated that that he need to show among other things that the substance at issue was listed in section eight zero two and then when the death when the mr gaul was unable to show that he was deported because of his circumstances because that was in that case he had the burden of proof so why is it ok for him to have that obligation but you should have a broader on behalf of the government a broader latitude when  burden for him to show remove ability and petitioner and non citizen was able to show that the substance involved was not a controlled substance and that it might be that he would not be found removable but don't you have the burden here yes that's why i'm saying we even though we have the burden all we have to do is show there is a conviction under statute relating to federally controlled substance i think if he came back with evidence is oh no no no he had jellybeans it would be he wouldn't be found  approach to be just that if the government thinks it means something different under the one than under a three i would really like what it is well i would look at the drake's case in that case the court did start out by talking about the categorical approach and talking about the least help that you have to find the least probable conduct and additional turman if that meets the federal definition but then it went on to find that actually in that case it was the statute was whether the law was relating to forgery so it had the relating to language that was is not present in moncrief but is present in this case so it starts out with like we have to analyze this like moncrief and use the least culpable conduct but then it just starts discussing the relating to language and by the end it recognizes that the statute under which straights was convicted is overbroad in that includes conduct that would not be forgery as if you know as the common law o broader version of the categorical approach because you don't have as i said you don't match up elements so with the fact that there's an element in the federal definition like you're a controlled substance does that mean that's required to be in the state statute as long as there's the tennis analysis the court isn't really isn't matching elements like you do in a juror categorical approach because it says with the relating to language you don't have to match in tennis but also said you didn't have have a critical element or but this is different but in that case in that case would be different it's relating to forgery quince as defined under federal law and her ends i mean we have here we have a different situation do we not commission but then it recognized that the states are all regulating basically the same substances but with different laws not every state in foreign countries too and foreign countries are when you when you're convicted in people who are unable to abide by law regulating drug use should not be allowed to live in the u s even if it's if they were unable to abide by the law that made that illegal divide i would argue that those of though it was under our client's knee the reference was to a woman who had a dui it's completely unrelated it was repaired seven months after it was filed seven months after the alleged incident yes and it was not signed by a district well i don't know that i own but i can i can say that it has no reliability to it and it would could not be admitted i mean the judge the i j a saw it was by the way the record of criminal conviction didn't call or the submission of the government's evidence didn't include the police criminal complaint the it was argued by my colleagues at the hearing that that was not reliable and apparently the immigration judge accepted that are the other two a couple of quick points i want to make is that he then this and traits i think are fine cases they don't affect us in any way adversely because what they are talking about change as it becomes something different than the regular categorical approach we're dealing with this particular subsection of twenty seven the way government is argued i don't see how it could it and i might just looking at the paraphernalia statute sort of analytically you have paraphernalia is any number of really any object in the world that's used in connection with ingesting manufactory story illegal so i don't see how it's different i mean that's what we argued in our brief is that the modified you take the logic at least the modified categorical approach of let's see what substance that is and as i said in an ordinary proper prosecution pennsylvania that should be readily apparent on the record there's no reason why that should be a mystery and the only reason why it is here is because the magistrate did not do what he was supposed to do under the rules of criminal procedure which was to have a plea colloquy stating on the record  the allegations or it could have been that it was a plea of convenience or couldn't and a number of things we don't really know what we do know is that you know we don't have it on the record here and with that the only other thing i'd  to mention is that we are really really grateful for the manage additional time we've gotten over this issue really is a pretty humble case but it's extremely important obviously her client but it's also really nice to know that it's taken so seriously