pointed out by the government  i just believe that well the issue here is this phrase one year or longer and whether this phrase should be read together as one year or longer indicating a minimum sentence of one year for anything above that or is this going to apply to a maximum sentence in a misdemeanor counsel is as you pointed out in each aspect that you have raised one of our cases says you're wrong yes we're a three judge panel we can't over rule one of our cases can only are we bound by our case law absent in court a lot of the contrary are a nonviolent court that changes our law well yes your honor that's why i start off with that yes i am arguing for a change in the law so how can we help you if we don't have authority to do that are you asking basically you're saying i'd like you as a panel to ask the court to a sponte to hold an on bo and change these what are the four cases well you have to overcome in order to be successful right so that's never happened before with four cases it's almost astronomical with one case maybe four cases tough i get i get i understand the emotionally as a person i understand the position i'm just trying to be realistic with you as to of removal i just want to be clear he pled to a felony offense right originally did he ever make a motion for the court under seventeen b to reduce it to misdemeanor i was just going to say that before you ask me question your honor there is a recent change i did make motions to the court and i have copies of the transcript here in the superior court did reduce it to a misdemeanor you mean outside of the record that this just occurred on april twenty second so this is not in the record but it was declared a misdemeanor so at this point i don't even know that i have standing to make this argument because in california a misdemeanor can only be sentenced to three hundred sixty four days and his crime was declared to be a misdemeanor so the argument that i came here to make i have standing to make in this case so tell me specifically then you went i mean this was earlier reduced to a misdemeanor right it had not been declared by the court by a motion in a clear declaration of the court my argument in my brief was simply that under seventeen b three it was under the law which was the argument i made to the superior court and they so declared it but help me with this as i understand it the sentence was bend it in under  seventeen b one when a sentence is spend it does not mean that it's not a felony it just suspend it so you're telling me now that you've gotten to the court  and gotten the suspended sentence i know what you get with that but basically the old tire record his pleading as of that he had a felony and that and the crime of which he was charged has been changed to a misdemeanor yes how that happened under seventeen b or because presumably he finessed probation he's done and so you know he's motion in state court was scrapped yes because the sentence was one hundred eighty days and not a year or more it was not a felony it was not a year or longer it was under a year and so the court looked at this and said ok under these circumstances seventeen b allows us to declare this a misdemeanor for all purposes so it's a misdemeanor and so the official record of the state of california is this he was convicted of a misdemeanor yes n well the recent change in california law penal code eighteen point five has declared that misdemeanors are punishable by a maximum penalty of three hundred sixty four days so there's no longer a one year maximum sentence for a misdemeanor and health how do we treat the subsequent changes in the law if we did if we allowed a state to change the law after the fact insofar as immigration is concerned we'd have to open up thousands of cases wouldn't we as we treat the law as being what it is at the time that is being considered right at the time of the original california law but it's still ongoing that i'm just saying here you have a case that was adjudicated by the i j goes to the vi and the california law says x well that's saying that sometime there after it was changed to say why is it your position that you have to go back and open it up because of the change in the law that the change is retroactive and applies to all misdemeanors the eighteen point that this is the problem with the way this is coming up right you went to state court and you got a reduction to a misdemeanor we didn't get notification of that i'm not sure if the government got a heads up and now you're relying on eighteen point five changing the mr mean or penalties we didn't get notice of that retroactivity isn't briefed so it's it's an it's an odd way to bring up new issues when you're appearing before the court for argument but setting that aside is eighteen hundred sixty four days because some of them are punishable by six months for example yes you have the exact language of eighteen point five it may lead to me don't i don't have it but the language is that the maximum sentence for a misdemeanor is three hundred sixty four days well that was true as of the new law but as my colleague points out there's no briefing on retroactivity is that mean that someone who was convicted of a  spent three hundred sixty five days in jail and it qualified as a felony and they've been out for ten years does that mean they can go back now and say i was never convicted of a felony if they were convicted of a misdemeanor and given a three hundred in this case you don't understand you have in this case he was convicted of a felony you're saying it was really a misdemeanor because he didn't send spend more than a year in jail and it was even though he pled to a grand theft which was a cia empty and it was for one year or longer at the time you're saying that the law changed retroactively i'm asking you does that mean anybody who was similarly person sentenced under a felony to a year is probably not eligible to go back and ask the court to have it declared under seventeen b to be missing years was so sentence but it was suspended right he was was convicted of an offense that called for incarceration of one year and longer that wasn't the bunk potentially could be punished by more than a year right but the fact that it was suspended and not impose at least under the current law doesn't change that right that's what we're talking about to start with that well he was and he had a sentence imposed of one hundred eighty days i understand you want to save some of your time we've got about three and a half maximum punishment for mr ok so even in season fans for which he was convicted originally would would now be treated as a misdemeanor would be under the sixty four thank you but as i understand it that section was an that for the very purpose you're talking about right exact immigration law is a plus but so your honor i haven't made any of my points regarding when you're a longer but they have to do with english usage they have to do with a comparison to the way the act uses very similar language the only other place that uses that similar language is in defining aggravated felonies for where they used the term at least one year or so is all in your briefs al two point five minute change we have no briefing on retroactivity and sol but what is the government's position i'm sure you're familiar with that statute since it's i'm sure coming up frequently in this case doesn't make any difference it doesn't  years in this case so really doesn't make any difference as far as his argument that his offense has been reduced to a misdemeanor this is the first i've heard of this it's not in his brief as the court has recognize it's not in any arguments before the board certainly the agency never had a opportunity to consider this new evidence and i'd also point out respectfully that the court's review here is limited to the record we get the government's position about these issues about the cia m t let's talk for a moment about the underlying merits if we if we get to that yes or the the v a took the position that he was return to el salvador anything new to add to that other than what's in the briefs now your honor is essentially his claim is that he was a military member and he was shot at by the opposing side which would not be surprising if that in itself doesn't make a claim for political asylum and he hasn't established that anything out he wasn't harmed because of anything outside of his military status can you connection with that issue talk about the delcarmen mo case i'm sorry i'm not remembering it was a case where the petitioner as family members join the military to fight the gets guerrillas in el salvador and there was testimony by the petitioner that she would be killed just because of her political opinion and the panel in that case found that the evidence was sufficient to show that she faced persecution on account of political but not being so it's an impudent political opinion  than just the fact that military that the family members had been in the military but perhaps the petitioner showed that there was some overt statement made to a girl as that they join the military for some specific reason and that was because of political opinion and here we don't have that at all we just have the peers are saying that he joined the military because if you did grow was or the military and i wanted to be in the military because the guerrillas are doing bad things there is no evidence that he ever spoke with any  a political pinion i told the girl as why he was joining the military and that they persecuted him on account of that and his father's murder is not enough of a because he was in the military is not enough of a  evidence of political motivation it's not your honor just because someone has killed a family member because the person who's in the military that's not evidence of a political opinion in a situation like el salvador when it's the military in the griddles the guerrillas are really splitting hairs based on labeling but isn't that inherently a political issue or no well whenever you have a civil war there's always going to be opposing political sides but that in and of itself is not enough to establish for a current military member because otherwise every military member around the world would have a valid basis for asylum in the military and being shot at by the opposing side there have been cases where people have established claims as former military members he has never made that claim that if he goes back you'll be persecuted because he was a former member of the military in fact is his persecution claim upon return is that he's afraid of gangs and he's since abandoned that claim does make that claim before this court and then he testified essentially that he's afraid of bad people and pages one eighty nine and one ninety six on the record he doesn't even mention the guerrillas he just says he's a he's afraid of bad factions basically in el salvador well when the guerrillas killed his father they did tell his mother that it was because of the fact that he joined the military terry and the military was fighting against them so that is an inference to be made there but you're saying that inference is insufficient to say that it's imputed political pinion versus mere status of his being a nonstarter military yes your honor just the fact that he was in the military is not in and of itself sufficient to establish that he was persecuted on account of either political opinion or imputed political opinion about moore and he hasn't established anything more than just the fact that he was in the military so they have to use the magic word political and then back out they would have to even if not using the word political they would have to establish something that that petitioner was persecuted or harmed because of something outside his mere military status and he hasn't done that at all hidden and i couldn't tell you what those magic words might be because it doesn't occur in this case what do we do with the case of cruzan the viral that you may recall was the one about the and concluded that he had failed to link the persecution of the other than his status as a police officer our panel upheld the government in that case yes he did or not agree with the concept that a former police officer had imputed political upon his return do not even exist anymore that your role is there's no evidence that they would harm him twenty eight years after he left the country or that they even existed in fact the only evidence he put in before the immigration judge was the two thousand and nine partment of state important it doesn't even mention the role as a much less state that there are harming people upon their return to solve and i gather the government position is that we never even really get to this because of the cia empty ramona's brief but to the extent that the court would address that issue it should find substantial evidence supports the agency's denial of that relief as well just to the extent we've been thrown a bit of a curve ball with this change circumstance  year long years in a matter what actually happened in this case and i would point out how many years after his conviction in one thousand ninety five occurred and that's something that really doesn't matter in this case because of the twelve twenty seven bar in this court as well that no matter what they still have to establish that they don't have a c i m t that's punishable by one year along here no matter what the execution of the sentence was or was reduced to so even even if cancellation and removal under twelve twenty seven eight to the site the fact that it's now been reduced to mr minor yes your honor and that's unfortunately for the position of us the way that the law is with cancellation and removal because he was eligible for a potential sentence not not what happened with the sentence after the fact that this is really out of left field but i'll just ask it anyway that we've had a recent change in the law with respect to crack cocaine versus regular cocaine hugely different sentences there someone who had been convicted under the old crack cocaine laws if you will that would change i think for purposes of immigration if that were implicated with it no it w army rather than join the guerrillas who were the controlling faction in his town he did this at great risk to himself and a great risk to his family and in fact his father was killed by the  guerillas because he did this because because your client did or because the father died because because the father is also a member of the army right now that i'm not clear on your honor i thought i thought correct me if i'm wrong i thought the father was killed because he was a member of the army my mistake and that i mean just check but i don't believe that's not a major issue but if that's my understanding what do we do with the case that i cited to counsel for the government the cruise love are ok's that's pretty close to this issue is it not in terms of the imputed political opinion yours your honor that he joined the army in order to fight for his political beliefs against an opposing player i know that's what you're there yeah but it what there's nothing as i saw in the record where he a former police person that was confronted by the shining path guerrillas said they were coming after me for my political beliefs they thought i was pro government and i communists and so on you should treat it that way and th our court said no right well what's the difference your honor i'm sorry i think the only difference here i'm running out of time would be that they killed his father because of this and that these people are still the same people even though they're not called guerrillas who control the area where his home is just twenty years ago yes but politically speaking that is still the same faction of people controlling your government now right yes and we know the government