the court almost good afternoon my name is jeremy mckinney i'm a member of the north carolina bar and very very honored to be here on this important case the like to acknowledge that the petitioner families here wife is children and extended family the petitioner himself is not in the united states after the denial of the motion to reopen in this case ice chose to have what he assault for the last eight years and that is his day in court the notice to appear in this action was issued in two thousand and ten and his applications  before the fundamental change in immigration law in one occurred after and that is calls the complicated years that have led to us being here today one was a drug offense possession with intent to sell manufacturer deliver in tennessee the second was a felony larceny and incorporated felony breaking and entering from the year two thousand in north carolina well if the nine hundred ninety five case is considered an aggravated felony hundred ninety five conviction i thought the consequence well know that we're not disputing it right under no circumstances does the petitioner simply get to not have to face his day in court what we're asking for is the opportunity for him to demonstrate rehabilitation  it's an effective waiver for that the third charge is what is in dispute it's brief does the second issue in our brief and in our reply and that's the one that i would like to start with because that one has support not only in the dissent in this case there was in this case the board of immigration appeals ruled two to one the dissent came down in favor of the petitioner on the second issue  that also was based on a unpublished bored case written by a board member roger all in the past it called matter of mela now what it says is that if the charge is multiple crime involved crimes involving moral turpitude and then it would then d h s s to establish a clear and convincing evidence to portability based upon two pillars if a waiver is available to waive the immigration consequences of one of the pillars then you cannot then that effectively waves that ground of deploying the supreme court has them analyze that and the problem with that is that the first turpitude crime could not be wait it did the right to waive under two twelve c did not exist to that he didn't have a second violation it was not the second violation and the second violation didn't come until after and you needed them both and so it it seems to me it sort of got it backwards on the logic here you're saying that  if any one of them but same service basically you had to have a right you had to be the exposed to remove ability and a waiver right attach and he was not exposed to remove ability in you just didn't seek wait st cyr would say he can do it but he didn't and wave ability never became out well before it was repealed but they were again different they a long decision that can be used to waive section two thirty seven a two grounds as well grounds of remove ability now the law has also shifted in time and gone back and forth whether there need to be an analogous ground of an admissibility with the ground movability the point is the supreme court has made clear now in jude law that you can use the two twelve to waive any of the two thirty seven eight two grounds and i would ask the court to e because he was sentenced to less than one year in prison and it occurred more than five years after his admission into the united states so stan and even though it was two crimes they were without dispute a single scheme a permanent misconduct and so he cannot be removed on the one c i m t standing alone but they were felony they were found and though he was only sentenced to one year that is correct or  w so the government charged that the possession the tennessee drug offense was also a crime involving moral turpitude that is a question that a cost drug inadmissibility and portability so often to just dispose of the case without getting to the moral turpitude question it's something that is really of a good review but due to the unique circumstances of this case that's what we have here and so we're asking the court to consider the question whether tennessee's one nine hundred ninety five statute possession with intent to sell manufacture or deliver a controlled substance in this case marijuana culpable mental state and then number two a reprehensible act now the board of immigration appeals has previously said in a precedent decision that drug trafficking is a crime involving turpitude that was matter of corn over twenty years ago in that specific case that was a cocaine case what we what contin two things number one possession within the same crime possession with intent to sell or deliver cocaine struck truck that it was the specific question as to whether absolutely are they under that is considered a controlled substance offense whether it is a crime involving moral turpitude was specifically reserved by the board of immigration appeals in that footnote and corn that we've provided every what we would contend to the court is that the board painted with too broad of a brush over twenty years ago and that as categorical analysis is make clear since that time is that we're looking at the specific doing is have us second guess congress and say some drugs are worse than others but that's not our policy so they have controlled substances and they list them and for us to assess well  would agree that's a crime of moral turpitude when you i would argue that that's not what is before the court today then as you know i'm ask you hypothetically drug traffic in an ox a coat on going on here it's not judging ok with respect with respect to marijuana itself let me make clear that that the petitioner was convicted of possession with intent to sell manufacture or deliver ok intent in tennessee the state the jury does not have to agree whether that was selling delivery or manufacturing that that states not required to prove that and the specific drug was marijuana what we're arguing is that marijuana is different it has a direct parallel to almost fifty years worth of jurisprudence in the realm of alcohol those both during prohibition and after prohibition would be the first court up with them he to my knowledge look at it holistically which is why point the court's attention to almost fifty years worth of alcohol cases during the time when alcohol was national a prohibited and resumes that we now and adjudicate whether or drug trafficking felony drug trafficking is a crime moral turpitude fact of the particular drug that congress chose put in that doesn't make it one way or the other it your you with them going to but that's got to be one of the most horrendous things going on right now is a drug trap in an ox and on and on and hydrocodone and i would agree with that your honor not think that's why immigration courts need to be you went through a red light so you'll come back thank you will give your will give me your time on a bottle  aggravated on the end of the i and it's a matter of this court determines to know and that's true whether you do it under your jurisdiction to determine jurisdiction or whether you're reviewing the board's denial of the motion to reopen review their band employing the familiar categorical modified categorical approach on innova review which shows that this conviction is an aggravated felony now we know from tennessee state law and from the statute itself that this particular provision thirty nine seventeen or law you look beyond the plain language statute tennessee state law does treat so in the liver as a single entity it's charging awkward to get them to all that our understand other words the argument is tennessee law that the state has to prove its possession with intent to sell distribute to whatever or actual selling distributing or whatever and this man was charged under either one of those it just on that point to to round out because it's not related only the board's conclusion that reopening to allow him to pursue cancellation of removal is proper and therefore the court can dismiss the petition for review of the denial  the motion to reopen reconsider with respect to whether that drug conviction is a crime involving moral turpitude you're absolutely right judge this is something that this is a substance that congress has listed in the controlled substances and tennessee frequently because it is something that can be covered under the controlled substance violation provisions but yes it has been addressed by the board it is a crime involving moral turpitude and congress has made that very clear that as the participation in melissa trotter i'd like to know mr mr bures argument on in his brief that that somehow this is different because of the intent element in this crime that that it's based on the amount you required to descript sell whatever that's right it doesn't matter how we reach that and the jury must must infer that from other substance or other situations circumstances as well for example  the paraphernalia or the amount of money things of that you and you're right or it's something that has to be determined and it's still an element and with respect to the two tall see issue you're on with just the remaining legal issues that this court has reasoning doesn't exactly go that direction they extend the matter balder its decision and if you if you get into how the board determine that they're absolutely right the extension a matter of all there is to this circumstance which is that t eligible for two twelve c waiver then the ground over movability is not eligible to be waived and that's consistent with or precedent or unpublished or decisions the matter of mellow decision that petition cites is an outlier it's it's old and it doesn't it doesn't deal with the situation here and it has what does it does the situation here but it has the same problem as the the dissent by the temporary board member in this case which is  focuses specifically on the fact of the crime as opposed to the to the overall ground of a movability and that's not the proper focus of a two twelve essence their job they choose what is going to be legal and what is going to be illegal but as this court has been quick to point out that does not automatically render a crime as one involving moral which the congress has determined or the time to see legislature terminal harmful to others and to the community whether deliberately doing that is a matter of moral  organize but here the prohibition is against distributing controlled substances and a hard time convincing anybody in the public that that crime doesn't you is there any other drug on the list of controlled substance that you would create and or none that i'm aware of at this time you're on the right is the tennessee lives the same as but not precisely but substantially so  and the degrees of drug traffic in congress put marijuana on that list as did tennessee because it thought it was harmful to society and harmful to have broad distribution and harmful moder be having a different viewpoint by several states doesn't change and again again your honor i would point you to in six hundred again i would point you to the alcohol cases that we have a the federal law is still save in colorado and see the federal law is still the same your honor i think that yes i would agree that a that the act is illegal i am not disputing that for one moment up here but for it to be malum in se i think that the what's going on in colorado and oregon and california and cetera is not so much evidence of the changing views on marijuana so much as it is it goes back fundamentally to whether it violates a public and a a moral norm when we're in the precise you that that the term crime involving moral turpitude provides a challenge for courts in half and has provided a challenge for courts for hundred years  determine what violates this kind of underlying moral norm as as judge posner recently pointed out at the seventh circuit that you know perhaps it's time to revisit whether the phrase itself is constitutionally a that's not my point zero point is that the challenge that is facing this panel is the challenge that is posed by the case law it demands our immigration judges and board of immigration