marijuana he pled guilty to the statute which is labeled possession of marijuana but the immigration court as well as the criminal the statute does have when it was passed back in the eighty's does have some clear retroactivity language and then the statute imports these schedules as qualifying offenses or disqualifying offenses so why isn't the substance it be essential if you had alcohol and opium or tobacco on a federally controlled substance it would not be it would violate her fairness to go back and start reporting people for violating the federal controlled substance act even though those cr atomic commission what about there instead of adding to a schedule congress amended the statute and added a new category of offenses say anything involving opioids would that be retroactive because of the statutes broader retroactivity language we don't believe it works or i don't believe it would your honor and the reason i is because congress if congress could make it retroactive i want to be clear about it if the amendment doesn't say anything about a tragedy we just added a new offense statutor that congress is very familiar with how to mix up how to make laws in the immigration act retroactive under two thirty seven eight to eight three which the aggravated felony statute they do make that retroactivity any time you've been intended to and again that you know how to point out retroactive  but for example the issue of what your client was actually convicted of that could be something sent back yes your honor it could but again the big i found that it didn't matter that the least culpable means to commit the violation is what the immigration judge look at that is why i would not believe her arsenal remain would be necessary but determination because the least culpable means to violate forty nine sixty six at the time did not violate the immigration a further langar of the supreme court considerations of fairness dictate individual should have should have an opportunity for their conduct they specifically said conduct the supreme court did during the convention there is no conduct by the client in this country you have a ri silent you do not have to testify on trial there is no conduct that takes place during a criminal plea the condo is when you're arrested that's when the commission of a crime took and why we believe that this court should find the commission of the crime is when the language they said that the conduct should should conform accordingly this court should also involve tell us in or tell us the courts stated the statute must be given retroactive effect of congress specifically stated to such and in nowhere in the immigration act does it state that this conduct is retroactive it was not done congress did not bring that up i mean did not specifically point did not specifically give that language and if they did it is still in permissible to give a retroactive effect is what i'm going to have to give that are in adding to the schedule could the agency given that retroactive effect martellus states that congress has to give it a retroactive effect the only restaurant congress gave in the idea back in the eighty's was to the conviction not the controlled substance so if they did not specifically retroactive effect of the controlled substance again they don't thing a regulation can give that rhetoric i don't think i don't see it here but i was asking hypothetically you don't think the regulation could give right i do not believe the supreme court was very clear that congress has to give the retroactive effect and i don't believe the agency can do that if congress does give a retroactive effect it still isn't permissible if it's marijuana your honor but it's not under a b c chimichanga because there's no waiver so the consequences the new legal consequences that affected the retroactivity that that this court that the board has applied or great he has never allowed back in the united states categorical approach does go to the to the conviction not the conduct and you do use the least culpable means necessary for that conduct but it still has to be a violation of the immigration and nationality act at the time the categorical approach we do agree your honor where the actions are unnecessary but in other provisions of the i and i the court has looked to commission and only two commissions this court actually this court held in the cars they'll place in two thousand and fifteen under section two the immigration nationality act the immigrant in that case was not able to apply for cancellation of removal and the reason being because the commission of the crime stopped the time not the conviction and that's what the court has held in that case so we're asking for consistency with that i'm sure that one of the i'm alone in the department flip sides and there are probably going for the conviction but that's not what this court ruled in that case so under two forty two section two forty of the immigration nationality act they also reference commission but we believe that the commission of the crime is when those seven that's happened we believe supreme court is shown that over and over again they talk about actions and conduct but you would still use the categorical approach to see what the drug was immigration and nationality act it is at the time of the commission it has given retroactive effect without congress intent to do so because it wasn't listed it was not a list of federally controlled substance at the time going to be convicted previously under state law for possession of tylenol right or he's not he's not to have that prior conviction he's only a convicted for if the feds listed in the in the state does not well then he may be convicted under federal law but that's go that's only for conduct that occurs after listing of tylenol so there's no catch there's no possibility that he's going to be mysteriously and surprisingly convicted for i guess what for an offense that has been the i don't know it is not at all to say that you can't suffer significant legal consequences for something that wasn't unlawful on at the at the moment that you committed whatever act convicted but it's too late but that's also the case in cases like lucas where the individual pled guilty in december after it there's no indication of when his conduct took place but he pled guilty and it's the guilty plea but it's that even around supreme court says that that's the operative time for this this notice concern right but he had also been convicted of the counterfeiting crime as well the for the for the change under a rock the counterfeiting a crime if i remember correctly occurred in one thousand nine hundred he was convicted and he went that's the reason why i think this is a peculiar case i mean we have a statute that says from one nine hundred eighty six on that the could that if you've been convicted of a pure old substance offense you're in a missile that means when you go out and you and not only when you commit the conduct in an anomalous case like this where someone's conduct is actually involves something that's on the state schedule of the federal schedules if that changes you have the opportunity to make changes to to change your behavior up until that moment when you up until that moment when you have to plead guilty or you go to jury trial in an attempt to avoid the immigration consequences of those actions a quality of done be either one and it doesn't make a difference and so if it's marijuana it's clearly within the control you know it's clearly a controlled substance and then if it's after naca that change bringing out the subsequent change in your in the and the schedules by the time he was convicted that brings it under the that brings it under the control such as that so either way he's going to be is going to be removable or didn't matter that they didn't decide it didn't matter that they didn't decide thinks that there is some reason why there is a difference between him being convicted of possession of marijuana and being convicted of possession of option aka if that convey if it matters then the court should certainly feel free to remain but the board here found that it didn't matter because the removal consequences were the same and he did not exhaust any claim with regard to say for example relief from removal and those consequences so going back to the to that retroactivity question and i believe he your position on retroactivity is let's say this conviction for synthetic marijuana happened in two thousand and five years ago years ago the conviction actually happened before then you would statute says before during or after or after right it looks as though that language sort of would i think i don't want to pigeon in the board here and the board may come back in it because they haven't addressed what would happen at some time between a conviction and the time some of the government seeks removal there is a change that put someone on the schedules but it would seem that if the control if as the board says here is the categorical approach at here is at the time of conviction that anything subsequent to that is maybe off the table so going back to this is well so even if we don't locus of this determination as to whether or not retroactively applies on the one nine hundred eighty six act as i discussed earlier there is also his ability to a changed you know sort of his circumstances up to the convictions any would make a strange what would make for strange retroactivity provision if someone who had been convicted of an offense before in one thousand nine hundred eighty six involving a particular controlled substance  could be removed but all of these changes these incremental changes to the scope of the schedule somehow would move people on and off and allow them to have retroactivity challenges and second again retroactively go you know only it hears when what the transactions are you know the transactions are or ones obligations are complete when when i guess what the last step is occurred in the pattern and the sequence of things interest or an expectation and that's going to be the time of conviction because if you're looking at eleven eighty two it tells you that the consequences occur at conviction you can take some acts up to that point i believe the petition er didn't raise anything with regard to the timing of the categorical approach that is whether the categorical approach it here is at the time of commission or conviction at least in his brief he appears to  the time for the the application a categorical approach is sometime before the time of conviction so unless the court has specific questions about that i think only it's right to directly about that but i understand you're raising the categorical approach as a that's w statute makes the key as a matter statutory interpretation conviction is the key i understand that argument but you also seem to raise sort of an workability concerns with the petitioners approach and i have a hard time seeing what with the issue of the timing of saying well it's clear when a conviction occurs it might not be clear when the conduct occurred but with the categorical approach you can consider charging documents and every i mean indictments or other charging instruments comes come in all shapes and sizes but just about anyone i've ever seen list the date of the offense because it's relevant for session the tensions are all in for double jeopardy so i don't see why it would be so hard to figure out the date and even for a continuing offen obviously if it continued into the post after the inaction of the new schedule it is there wouldn't be retroactivity right exactly so if you do have those treasury documents so if you do have the complaint or the information like that or the in the  indictment you're going to have that date that's correct but for immigration purposes you don't need that and they're often going to be that it's often going to be the case that the documents are so old that all you can get is affectively some sort of middle order or  it if you're saying you said it wouldn't apply to you if the conviction occurred it would only be she would only come up in the board's view of the conviction post dated the recent change to the schedule right and those are very and those are very rare cases well if it's a categorical approach that's not necessarily the case right i mean you have this federal set of schedules that sort of shrink in expanding shrink and expand over time how often are new new substances added to the schedule imperiously i don't know but anecdotally it seems that they list and deal is substances pretty regularly and so you would have this growth and in shrinkage there are drugs from the seventy's that persist into two thousands and then they finally this this stretching this to us and the thing is is that the way the categorical approach is supposed to work is we're supposed to be able to look at a particular time right and it's a say for example we've got the stretchy schedule and we fix it in two thousand when say someone's been convicted of a substance you know under a particular statute and then we compare it then at that so that's going to be the way in which this works so let's assume that someone substance was  that someone was convicted under a statute which would have then would have met categorically met the federal definition two days before his conviction and then at the time  the you know i guess what the federal government d l s the schedule and so it shrinks right so you've got an overbroad state you suddenly have an overwrought state statute again it's going to be at that time i mean fur for us to be able to evaluate it and we may not have at that time an information because it's a really old conviction but we may but we do have the conviction doctrine otherwise we can't come in in charge and so we're going to be able to use that to to accomplish that task even if we don't have the old you know sort of happy information or complaint or something like that so this is a problem that will that will spring up i mean that is a continual when they can spring up under the categorical approach not just an anomalous one that occurs when someone when you have this rare case in which someone's actual substance is something that man that was not on the federal schedules at the time they committed the act and then subsequently becomes the schedules we are today in this court has no the court your own government's argument that he could have taken actions after the commission with the police simply doesn't hold whitely gives a very slippery slope if he didn't take any action to didn't take the plea and sat there and exercise his constitutional right to remain silent and a jury found him guilty he would still be a conviction this court is not really about the mission but the conviction it really doesn't hold the government the responded to can take no action have the commission furthermore to say that they have no place of possibility of violating a federal controlled substance unless there is a state conviction is simply not true at a recent immigration panel we discussed the possibility in states like colorado and california to legalize marijuana that are still in the federal control ible from the united states on the immigration and nationality so it's a head notice for the state conviction he should have played and it could have popped up later on the federal substance simply not true marijuana is one of those statutes that in some states are legal but it is still a judge found and page six of his decision in the general as discussed responded was convicted of possession of marijuana the police report indicates he possessed three grams of synthetic marijuana they responded they would come up to the same decision as immigration judges case even though they missed it the first time they yes even though the i missed it first time or believe they would find it based on the decision from the judge that they