for a crime or x is a violent conviction for a lower regulation relating to a controlled substance when that controlled substance is not a federal controlled substance and i mention this because i want to make it clear that we're not arguing we're not arguing that the word relating isn't brought we take it is not as possibly what we're arguing is that the controlled substance itself must be a controlled an at the time after admission has been convicted of a violation and the law or regulation of a state the united states or a foreign country relating to a controlled substance as defined under section one or two of the federal  substance in the schedule one and you go in there gamma hydroxy on like i said i don't know but anyway the thing is that at the time of the conviction the federal law stood in the regulation twenty one code of federal a federal regulation section thirteen away point one three this than that that was divinorum is on the state list is not on the federalist and i think that was back in two thousand and nine but i don't want to swear an oath to it right now because part of the part of the problem here and it's part of the reason why it's so important to have one definition is that these change every year and they change even sometimes more frequently than once a year and sometimes the state puts things on the schedule that the feds do not there are exemptions for instance in actually is a substance and i think there are two or three states that control that on their list pennsylvania does and i would remind the court that this is not just state statutes and not just pennsylvania's but it's also foreign statutes for instance  in any event upon the federal government to prove that the substance whatever that substance was was on the for the federal regulation and they didn't do that and it's never been argued by anybody up and so you're related to a controlled substance offense it's just that in pennsylvania it's related to a pennsylvania controlled substance where some of some pennsylvania substances are in fact on the federal register pennsylvania does not say that might indicate that it wasn't marijuana i mean you know whatever it was it was seven years it was seven months oh i don't know if it's any event in pennsylvania it's one of the easiest things to do is to prove what with ok right so then we know that cocaine is with him and that would that would do it for the government i think it would if in fact they showed the spoon was related to the cocaine yeah i think that would in most cases and in fact the all i'm asking is that they do it and they didn't do it in this case and no one argues them below i mean the immigration judge did not say oh they're the same statute that we look at the complaint case documents we get out of the record  k well normally if there if there is a substance there yes it's you know five yeah i would i would say normally you can what's unique about this case and what is very troubling if you're if you're representing the ele and before think that that's i don't think that gets you to the final result because the important point here is that government has a burden and i would point out that most of the aliens that appear before immigration court have no lawyers at these are very quick proceedings and the government is supposed to present the evidence the record of criminal conviction to show what happened mr ramos was fortunate that he had a lawyer that looked and said well wait a second here i don't see that that you've proven that this is on the federal lest the government didn't go back then and say oh yes he here is a lesson you know here here it is we can improve mr sheridan i hear what you're trying to say but and you know i think this may be where you and the government disagree on that we have been over a review of this question we have to look at whether or not the pennsylvania statute under which your client was convicted is a statute relating to a controlled substance and you want to look at you want us to look  law or regulation correct ok and i would agree that on further to say analysis of the laws or regulation of conviction is required not the conviction it's the laws now it seems to to different i hope a different why i hope not because i actually agree with that i think the relating goes to the the violation so for instance if you had paraphernalia that is a crime relating to a convicted of a crime involving a federal control subs now and that is right that's that's where i disagree with you that's either but it's not there bert their burden is to show that you were convicted under all that was related to a controlled substance and it says right in the statute as behind as defined i think the key point where we may i may disagree with what you're articulate and doing very well at all thank you is that you focus on substance related to modify its controlled substance and therefore in the section is right and it's the burden of the government by clear and convincing evidence to show each and every element over movability or not we can find one and we look awfully hard i think there should be and and i'm hoping that you would you would agree with me that the burden is consistent and that's also consistent with matter of would spell that out the answer would be yes but in this case you have a very unreliable criminal complaint and that that is a problem it was not a problem that the government could not have overcome  possessory type drug offenses like drug paraphernalia but the drug store has to be specifically identified on a federal schedule and that's not consistent with a categorical approach when you compare the elements or the nature of the  under the category approach we first look to the states actually so we go to pennsylvania and we in the yeah so it's the nature of the crime if if pennsylvania actually had controlled substances that were not unkind to the federal ch substances pennsylvania and i just pointed out that we were gave an example one wasn't true right because it wasn't both so i thought maybe it would be a good idea to yes the parties simply make an analysis and see if there's any because of everything is also at the time of the conviction at the time of that at that time it was also in  think i'm right about that but the pennsylvania schedule was not water at the time of the conviction and the federal schedule now they change and maybe it was broader later but that doesn't matter when i did my research i did it from the current schedules and i thought ketamine was one that was not on the federal step although it's not that and because it was a conviction at the time of the conviction that's right you have to look at and in order for the ninth circuit to reach the hold in a little way they had to specifically find that the california or excuse me the arizona drug statute or conviction categorically matched the federal schedules even though there was a couple drugs well there's actually one drug right now in arizona that it's not on the federal schedule it is the condition here for drug matched federal well it doesn't have to match the list the way in which says relates to a controlled substance and then a pair of federal says as defined in so you look at the nature of the crime like this court dembrow it looked at the nature of the federal probe how it's not exact if you g paper well the board answer that question and they said under pennsylvania law in order to be convicted of drug paraphernalia it has to be tied to a specific controlled substance under the state schedules so you c esoteric well i think it's a little on real because it doesn't happen all that often in this type of question actually you would think would come up more but it doesn't and that's primarily because it's it's used as a removal ground for people hold their green cards but because in order because in order to be convicted under pennsylvania state law the year has to be a specific finding that the person intended to use that instrument tell it with a controlled substance now that can be inferred through circumstantial  sort of category as marijuana ketamine cocaine heroin and i mean other substances that are on the federal schedules i mean congress is concerned here if it's if it's construed as strictly as my colleague suggests we would never use a categorical approach hardly ever five but you would look at the schedules and see how alike they are i am just saying that the schedules do not have to align exactly it would be a huge difference that is a very large number of people smoke tobacco exactly right the focus is not on the quantity difference although that's certainly something you would consider but also the kind what kind of drugs are on both and i think a congress use relates to language because as i was saying earlier you would almost never use a categor it's a benchmark your honor to compare what types of controlled substances on the state and federal schedule you're looking at here so yeah i had one remedy i thought yes briefs and take a look at the schedules as far as my research revealed but i was using a present day scuttles i saw ketamine as the only distinction and this core in google which was an unpublished case wasn't concerned by that it was a new jersey boy and statute and it said we did compare the schedules we don't know what substance he actually had in the states disorderly persons conduct but we don't find any meaningful difference between new jersey and federal law if there happened to be a meaningful difference the outcome might be different and the argument here is there deal with the immigration trial court matters too much i did court for an immigration judge but i wasn't in pennsylvania so i'm not sure what they do and at the scores there unless there's further questions i just have a few quick points in rebuttal not of gold i think actually is a very good case to illustrate the difference of what we have in matter of pool or i think that was the property in the case of the burden was on seeds and not something else and that's what you were convicted of under the statute show us that would be appropriate then for the elliot to come in show you that's what he had and that's what he was convicted of but here it's the government's burden and the government is case that we the they had their chance i mean keep in mind this this gentleman has been now in prison for almost two years the taint under to thirty six not because of his criminal violation which was just one hundred dollars fine but because of his immigration issues he's been sitting in your kriz or pike county prison or wherever while this is going on he's a permanent resident and this issue was raised not a two not five months after not six months after right from the beginning there's an issue here and you know my colleague winge when she entered the plea to the nth yeah i was extraordinarily careful in identifying it and highlighting the issue and gave the government all the chances in the world to do what the government's job is prove your case now we're here this is we have spent more time in this court on this case that collectively was spent below i mean these are fast proceedings there are you know it's a it's not like going to come in please quote let me put it that way and so what you are left with is a decision by the immigration judge saying i don't care whether or not real objection is they waived i mean we argued it we presented it we didn't hide the issue we put it right on the table and they just didn't bother addressing with stress or yes it was in the brief which i think is in the packet of material this issue was in the briefs before the b i a the b i a just ignore it and that's one of our frustrations is it's like playing tennis without a net i mean the the the b i a was told look what we're arguing here is this was  this has a controlled substance under federal law it says so that's statute says relating doesn't modify with the controlled substances relating modifies the law that you violated that that had the documents trial counsel didn't argue before the immigration court that oh gee you know these statutes are the saying or gee you know we can prove that in fact it was under the federal law they argued we don't have to do that  agreed and then we appealed to the b i am the b i a skipped over the issue and now we're here and you know it's it to go back again into argue again the issue that they didn't pick up on when we put it right in front of them seems to me you're giving the government two bites of the apple to do what they should have done in the first place if you give us an opinion that says what we're proposing they will do that next time and you won't see us again because they're going to have to show was it her went ok it doesn't matter that whether it's under the state control statute a straight paraphernalia statute or a federal paraphernalia statute heroin that's a federal controlled substance no issue but here we don't know what it is y and that's it seems to me their time to have done this was a year ago and they didn't do it and you know as much as i and we were direct about the issue that's the other thing it's all like we were hiding it