this court should grant the petition before it and hold that mr espinosa is not removable for two reasons st this court's precedent in applying the taylor analysis prevents looking beyond the text of the statute for the type of explicit over breath that's present in this case and removable because the california definition of methamphetamine under its health and safety code is overbroad compared to its federal counterpart in the controlled substances act specifically the california statute includes both optical and geometrical i d the issue there is the government is taking the position that you metric isomers don't exist if if we decide that the government is right in that case would that affect your  case that would affect our case your honor however mr snow has taken the position that this court is prevented by its precedent in applying the realistic probability exception as the government wishes to apply it here because of the t appears the issue appeared to be foreclosed at the time of the proceedings below this court elaborated on that test in soca son versus ashcroft where it helped that relief is only available as a matter of right if the agency is able to give incumbent consideration or to put it the other way as this court said it's not available as a matter of right if the issue appeared to be if the agency's position appeared already set and here at the time of mistrust in those proceedings methamphetamine definition in california was a match the federal definition saying that methamphetamine is of course a controlled substance and i think you're arguing that this law renzo case changed that and remove the impediment but i'm wondering how the petitioner and lorenzo exhausted that he brought it and he should not be precluded from bringing it now on on appeal turning back to this court's precedent in applying the realistic probability test in u s vs grisel the on bank pan there specifically the court court apologies your honor specifically stated that when a state statute explicitly defines a crime more broadly than the federal definition the  when the statute is silent or ambiguous as to the over breath not where is that it is explicit the analysis there has always relied on the meaning of the text and here the government seeks to go beyond that and contradict the plain meaning of the text by bringing in scientific evidence that's never been done before and this court's application of the realistic probability test in addition to it hearing to precedent there are three additional reasons why this the california legislature is in a better position than this court to conduct the kind of fact finding that would be required to make the determination about the science behind methamphetamine and the california legislature is also better suited to assess the will of its constituents in determining how broad to draw its controlled substance statues and in fact california has made explicit choices about when to apply the definition of i a particular substance the default definition of isomer under health and safety code is geometric and optical isomers and that is the definition that's applied to methamphetamine however  is i'm a realistic probability is usually it's just a very unusual interpretation of the statute that we don't think the government would ever do but this is actually like a fact like it either exists or it doesn't right it's hard to interpret the statute in a way that just has a part that completely doesn't exist at that point and it's beyond it's more than unrealistic it's impossible so at that point it seems like we really need to resolve this fact and i don't know how we do that in your proceeding well again if the government if this the categorical approach was designed to prevent these very many trials from from going forward the fallout of allowing this type of inquiry to move forward is that there will inevitably be either on this issue or other issues inconsistent opinions in the lower courts and it would be incumbent upon this court to clean up that mess so the basis for the categorical approach is grounded in judicial economy and that is part of why this court has limited that include different lists of controlled substances all four of these sections include exceptions to the default definition of i c or in some cases only optical isomers are applied to a substance such as amphetamine which is a one line above methamphetamine statute other sections include a broader definition of ice and optical geometric and positional isomers so california has and again this occurs over all four sections that include lists of controlled substances california has been deliberate about when it intends to apply its default definition and when it does not and the federal statute likewise has exceptions carved out  well and they have they've either at the time were since apply different definitions to different substances as has the federal statute so for the questions i'd like to reserve the rest of my time for a morning your honor please the court unless a lot on behalf of the u s attorney general the court should dismiss the petition with regard to remove ability on the controlled substance crown and remain on the issue of relief dismissal any issue of your choice drop oh i'm sorry remained on the issue of relief dismissal and remove ability is required because the petitioner failed to exhaust the only challenge to remove ability on the controlled substance grounds that he raises now which is his argument that the california definition of methamphetamine is broader than the federal definition the petitioner could have raised the issue before the board as the petitioner in lorenzo did but he did not and he was not foreclosed from doing so as you can see as well the court had previously held in addressing california methamphetamine convictions that it was a controlled substance under the federal controlled substances act it the court had not previously addressed this particular issue  and he was required to exhaust this legal challenge and there was there's also this court has had previous has previously found an unpublished decision in two thousand and fifteen which post states you so so yes this is the outcome in this case should be dismissal in part and remained in part but if the if the court were to decide that the exhaustion requirement had been met then it should deny the petition on the issue of ring of ability because this is not a case where the statute overbred this evidence from its text and that's because actually correspond to methamphetamine and additionally when you define the two types of isomers doesn't that just get us back to the fact question i mean i know it's the government's position that this kind of a summer doesn't exist but it seems like that's an issue that's actively  tested all over the place in a lot of cases and we're there we have a lot of pending cases there but there are even more in other courts and at the agency so someone if there is all of this back question at some point right and it can't be us as a panel so how  methamphetamine and it could be treated as a factual issue and it could have been treated as a factual issue in this case had it been exhausted but there is also in the court could also if it determined that the issues were exhausted it could also look to the statute and determine whether the over breath is evident on the face of the statute in our position is that it's not and so then from there because it depends when you look at the definitions for the for the two types of isomers that are included in the california the general isomer definition for california once you define those and i'm talking about the dictionary that definition in this is the dictionary definition here is that's a stereo isomer of a compound having two or more chiral centers that is not a mirror image of another stereo isomer of the same compound so it's going to depend on the it's only going to punish methamphetamines isomers and you have the two types of isomers in the general definition and those are only going to be president or attached to a substance if if the underlying chemical makeup of the substance allows for it and so can i just to summarize this if i understand this so i think what you're saying is there's a general definition of ice summer that has two types but you're saying in the meth statute it says it's meaning the ones that meth has and so your position is meth only has one not two but that's a factual question right just to clarify your honor i'm i'm not saying methamphetamine don't exist because we don't have the we don't have that factual record that is the government's argument in other cases where there where there is such a factual record i'm saying it's not what you're saying what does it's do i thought it was i thought your use of it was predicated on the existence in the world but you're saying it's means some other way of limiting you know i'm sorry i i i am saying that it's  case it's going to refer to existence and we again we don't have a factual record that shows that one way or the other but there's ambiguity in the statute in how the two types of isomers would relate to the particular controlled substance and because that's an unknown over breath isn't evident on the face of the statue but the only way that it isn't overbroad is if we as a court should see it's and know that there's those depend on underlying chemical makeup of a substance that's also something we don't know right now i mean i am going to get this so i don't understand i mean this is just a mess i don't understand how we can resolve this statutory interpretation question without someone somewhere in this country resolving this question of what kind of math exists and i appreciate that your honor i think so the government's position in this case is that because and this is again assuming exhaustion because this isn't an issue that the court even no are only argument or argument on the merits and again this is assuming the court even the court determines that the that it's been exhausted does not need to reach this issue in the case but assuming exhaustion if the court reaches it because the interplay between the general definition of a summer and the specific controlled substance that it appl methamphetamine and those are the optical isomers which are punished under under the federal statute how would it come up that it would be referenced in the california case law like why would they talk about what type of isomers someone was arrested with well they isomer definition there was litigation about cocaine for instance and that is the legislative history show it shows what really prompted the nachman of this definition and so i think cases and it was it just mentioned in passing in these unpublished cases that's without any like anything turning on it that's correct because if and and the one of the cases like the published cases on methamphetamine don't specify the specific isomer but it does come out the same way you know that these references might be made to just generally like what's covered under a statute and then i mean outside of california case there's also there haven't been on the federal side for instance where the definition is limited to optical isomers that you haven't seen challenges they're based on you know geometric i for instance but just under the realistic probability approach there is no there's no reference to a geometric isomer in the in the california case law and so then applying the realistic probability approach it  has no further questions we would we would the government asked that the that the petition be be dismissed as to remove ability three points on rebuttal your honour's st regarding the exhaustion issue there's no failure to exhaust here because of the test and so cosign that test the appearance of foreclosure rule has no meaning or vitality if we can just elaborate on why it's not allowed the exception to exhaustion so it's not clear what arguments were made there or why the court made that determination so it's really not relevant here nd to get back to this court's question on the pending case next month if the court does want to allow the government to having a hearing on the science it could stay this case pending the outcome of that case however the act which i am sorry in the statute which is what this court has always done and again when the legislation is clear there is nothing else to construe as the u s supreme court has held in shreveport grain elevator that's