your honors when mr gomes filed a motion for reconsideration before the board of immigration appeals which was on december the fifth twenty thirteen that motion showed clear prima facia eligibility for temporary protect status the board of immigration appeals at that time should have reopened the removal proceedings as a matter of law we believe your honour's that it was very very clear that mr gomez felony because he's changed his attitude giving him a break but it's his burden to prove which well i think your honor it's the burden of the government i think it's a yes or no it's ice ask if it was his the board of immigration appeals and eventually back to an immigration judge if the government at that time can show that the conviction was vacated only for rehabilitative purposes or because the court the superior court wanted to give mr gomez a break then it's not valid for immigration purposes but the government would have to show that and that's their holdings i believe your honor in both of those cases that i'm citing  the burden is on the government the pleadings in a motion to reopen reconsider should be considered should be accepted as true unless the government can show that they're not true so in this case i believe that it was pretty because you know it well it's not clear actually whether or not as you say you don't know whether or not it was vacated for rehabilitative purposes but it's like i said it's the government's burden to prove that question slightly different question sure that one of the problems that the i was concerned about was the failure to file a certified record and then there's this printout if i'm kind of color print out that but it's got a stamp on it  but you started by saying that your position is that when your client filed a motion to reopen that he had submitted prime the faceless face or eligibility for t p s and in order to do that he's got to have record that this state court conviction is all no longer a barrier expungement or vacation depending on which group you're going to use and the thing that's in the the document i call it that's in the record is it looks like a printout from state court but it's got a stamp on it is it is your position that that's what i should be looking at and that is  your understanding is that the states you think the government is no longer contesting that i don't think so i don't see that in the government's answering brief but we'll hear from them in a minute on that point i just want to make some looking at the right things i thought you know at this time well that we can hear from them i'll reserve the balance of my time  his proceeding on the basis of actions taken by the criminal court as as counsel noted one who seeks reopening to show eligibility for relief has the burden of showing prime aphasia elements found or movable by reason of a conviction and was removed there after the alien filed a motion to reopen based on the vacation of the of the rim conviction that served as the basis for the  deportation finding in that case the court said that if an alien and that but those are really departure bar cases in the past you could not file a motion to reopen after you removed the court said in those cases if an circumstances here the mr gomes was not removed on the basis of his fraudulent document conviction he was from order to move based on his being present in the us without being inspected or and or admitted or paroled opening brief we don't know i just explained why i think those cases are distinguishable and do not control what happens here as far as the burden being on mr gomes because he's the the movement here i think that's pretty basic law that whoever files a motion has a burden of showing that he's eligible that if reopening is granted that he'll be able to show what he claims he will be able what he claims he can show in his section thirteen eighty five and i guess i don't understand why that's not sufficient at least get him above the prima fascia show because all we're doing is guessing that isn't that doesn't indicate your honor respectfully all we can do is guess what expunged whatever the right word is on grounds other than rehabilitative purposes like we don't know for sure as you say what the persist ground was but that's where the burden shifts to you  it was that the ground every every move it was the conviction no well just i want to be clear on this because now is a remove ability case this is slightly different but i don't understand why the standard would differ on that  just related to because because the government the government bears the burden of proving the movability the council now if it's unfortunate you haven't read it because i think now does go straight to the point on a motion to reopen  what we've got there is the go to court citing this very same california penal code section thirteen eighty five where it's very broad and it might be that the conviction was expunged for a permissible reason and it might be that it wasn't we can't tell just is just what for indicated i'll just tell you that i made the case the very same way so on at your three in this record the b i said that the petitioner is not old bill for leave because his conviction was expunged on do tim it's the one that's where these used to i'm not trying to be flip it's where the the second one just to be clear where they used the word dismissed and they're citing california penal code section thirteen eighty five which i think is exactly what happened now and are other line of cases which i believe in the sixth circuit i've tried to play but in there if if the basis for the removal is the conviction that's at issue and perhaps show vacation or what happened under under thirteen eighty five then yes i totally agree it's the government's burden to show the government back to the burden movability is not at issue here so i don't if not all i would say to the court is is a case where the removal is based on the conviction i believe that's distinguishable here because all we're talking about here is does this conviction barred him from temporary protected status that's the only relief he sought in his motion to reopen he's saying hypothesis so but i do believe that correct so if not does say that in your context of seeking relief on reopening the burden shifts to the government that's sufficient then that may control the outcome the case argument or put a position is that by looking at the minutes here the board could not figure out whether the conviction was vacated in the substantive grounds or or not board the problem with the board's decision is that they apparently just stopped reading the docket sheet you know above and didn't realize that there was actually a second proceeding under thirteen eighty five that related to the exact same conviction the only reference that other statute whatever it is twelve three which remain you know yeah that not that earlier proceeding i think you'd be absolutely right if that's all we had he would lose but the the the problem is the board and then further analyze the fact that there was the second proceeding under a different statute which our president now says he gets at least a chance to go back to the i j a and then you can litigate whether in fact the ground under thirteen eighty five was for a legitimate purpose or not i didn't i i don't dispute that the board not specifically addressed that section i would state that the motion was rather ambiguous or big on that he referenced it and just said the sentence was vacated in both the first and second motions you can't just i mean i understand he submitted them the minutes of the proceedings but it he's making the motion i believe it's the counsel the burden or the petitioners burden of the movements burden to explain why this conviction that should no longer bar him from eligibility he didn't really do that he kind of said here's some minutes that may have some bearing on this issue let's reopen the case and figure it out which i don't think makes the heavy burden for reopening times thank you thank you