test known as the land graft test there seems to be no dispute on the first part of the test that congress did not with any clear voice expressed whether this new statute should apply applying seems here that indicate how to determine if there is a retroactive effect pretty sure all of the cases to have found any improper retroactive effect involved without a problem without being charged and put in deportation proceedings it wasn't until the law changed the data sensibly that rule changed and then he negative language a returning lawful permanent resident is not subject to the grounds of disability unless one or six grounds are triggered so they don't explicitly say that if doctrine is overturned in this case the retroactivity problem based on the fact that this was a plea the behavior of your client was not merely the behavior of pleading guilty but it was the behavior after the new law comes into effect  traveling abroad well the thing is that once the rule had came into effect there was no way to make a different choice the problem well the problem with that argument is that he made the choice to enter a plea giving up his right to trial and all the rights in exchange for something and that's the essence of the thing syria decision after that plea was entered and the exchange was made so to speak he had no ability to do anything other than decide ok it's too dangerous for me to travel but the point is that when he made the decision to enter the plea so knowing that i can still travel so the bargain was already made when the law changed he didn't have any choice any longer so all he could do is not travel at all but that doesn't affect the fundamental unfairness that when he made the bargain by entering the was he gave up some rights at the time that he entered the plea in exchange for knowing that he wouldn't have an immigration problem so that's the relevant time to determine the relevant action and the date that  what i was saying is there's no independent relevance to the guilty plea he did not bargain for his ability to leave and reactor the immigration judge here correctly decided that he didn't bargain for the ability to for  that the retroactive consequence here stems not from the conviction but rather from the offense yes your honor and he would have to have settled expectations as of that date and i urge the court to look at the argue the case involving alvarez as well as  as the language let's let's look at it as president johnson used to say let us reason together ok and whenever he said to you you knew you were in trouble if you call it that statute in the papers i'd like to see the actual statu officials regardless of whether he decided to plead guilty or go to trial if the if the policeman said you know we we didn't conduct the investigation properly however we have this evidence they could have submitted that t federal officials who could have conducted the same procedure here if they had it in their possession they could have they could have charged him before sexual abuse of a minor or crime of violence which under this court has considered the same statute cummings was convicted of and decided that was a crime of violence for immigration purposes or they could have waited as they did here from when he when he tried to leave in reactor the country back in two thousand in two thousand and one and say we have the seven so you committed offense back in the not his not his commission of the effects it was his discretion you never became eligible for discretionary relief until after i had been an active he had committed the offense in fact pled guilty before that time let me ask you this difference here because even though he was convicted the board might have might have misstated or didn't state as clearly as it should have but when under but under subsequent circuit law this court i believe the board would have would have characterized as  conviction but rather commission i've got a problem when the evidence for the commission of the offense is substantially the conviction based upon a pl consequences to this plea is that you know you're entitled to have the proof of the i found the criminal offense to be proved beyond a reasonable doubt a trial and he gave up the valuable right to be having approved a trial so here i'm i'm not entirely clear with you i actually know the answer because i looked it up i looked it up last night the court doesn't say it just says he committed the offense and i don't tell us how they know he committed the offense i think it's the same should be required in front of the i j a of commission of the offense and as far as i can tell from the decision here in the be there simply relying on the fact that the conviction  well but you know we've got all kinds of problems here and one of them being ok how much evidence is in the record what standard of proof is required is beyond reasonable doubt or is i mean the none of this is fleshed out here  notice to appear that's all that's on page four sixty eight of the record there was actually an amendment but this lane which is only included on page four sixty eight hang on a second specifies a number for item number four on february seventh ninety six you pled guilty in the superior court in other words they're relying on the conviction they're aligned on the conviction and at the the master calendar hearing that's what was admitted to that there was a conviction and the conviction is what was at issue if it was another case and the individual had only committed an act and never been convicted and the government said we think you did this his answer would have been i haven't been convicted and i deny that i did it because you're only accusing me of doing it and they would have no case it's because there was an actual conviction that they had a  times when you don't need a conviction one of those times for example is drug trafficking you can be inadmissible if the government thinks that you are engaged in drug trafficking even if you didn't admit it or be convicted of it that's not relevant  travel i just want to point out that the fourth circuit case all look to me that is the only circuit to have analyzed this retroactivity issue also addressed that same question and they and their reasoning was also that