states in one nine hundred sixty one at the age of six years old he has two adult children a common law wife of over thirty years he furthermore h positive influence in this children's life the immigration judge also noted that he had completed very substance abuse and two hundred service programs you know i think we appreciate the fact that he would really have a wife qualified for this kind of relief this case means you've been convicted an aggravated felony therefore you can't get cancellation removal may apply in the case then the burden shifts to the alien to prove by preponderance of the evidence th mandatory brand of denial plies that's a contrast to remove villainy which obviously is the government's burden of proof in this situation the petitioner cements that the rap sheet his admission that he sold a joint to a friend was not sufficient evidence to shift the burden of proof because there wasn't that the immigration judge didn't have elements of the statute from one nine hundred seventy eight and as you probably well kno drug related aggravated felony under one hundred one a forty three b of the ins and is a very complicated definition involving a list of trafficking which is as the board said a matter of davis involve three under the old drug laws which the immigration judge noted were revealed that bartering exchanging and transferring a drug was sufficient to make someone guilty of the crime of possession of marijuana for  could have been convicted of the crime possession of self or merely giving a joint to a friend that the evidence did not raise sufficient influence for him to shift the burden of proof if i may shift into the second issue and due process this i think the immigration judge was very well meaning and very well intentioned but i think in accordance with night circuit law he violated sheet mr bakker struggling with the situation was trying to understand these pro sayings you taint what the government was trying to say and so he asked well how can i find out about aggravated felony the judge said consult a lawyer are you submit the cancellation application bechard does that the government of it's no motion to preach are met then they go to the individual or mr becker's extensively examine a cross examined by the government by the immigration judge the immigration judge once again indicates that he  to present their case it's the board and the government seem to have decided this case in a vacuum they don't understand the situation of a mr packer who's being kept in a cell in a prison for two matter of davis this is what matter davis sass about lists of tracking about drug trafficking immigration judges do that all the time and i as the counsel mentioned in the police the attorney general who's the if you've had any military spent experienced orders coming down from the general can be interpreted in various ways by the time to reach the rights and it's true in this situation i think it's important they do tony general no question has the job and immigration judges they know a lot of them in the ninth circuit are going to listen very carefully to the attorney general's remark and w f f so i think i would urge the court to look at this very carefully the due process on the third issue constitutional question an erector act retroactivity claims all without or without merit all dressed each one in order first and a very narrow legal question as presented before this court whether the immigration judge properly shifted the burden to petition to determine his eligibility for relief and in that case the immigration judge followed the particular regulation which is appropriate in this particular case he found first that the evidence that was presented and there was three forms of evidence was my brother and alluded to first the f b i rap sheet and second the petition is testimony and let me clarify one thing it was not one joint it was one ounce of marijuana would just have to have the evidence to indicate it because he was not trying to remove ability under this this charge the signs and we just have to show that you haven't in the case so if you take out the two other pieces of evidence the admission which the immigration the petitioner for being forthright and honest and outlying everything that was involved in his life without that and without the application another critical piece of evidence  judge pointed out in his decision we would have had to prove by clear and convincing evidence that he was in fact removable in this particular case it goes to the relief and as this court said and saviano fernandez when it looked at this particular regulation recently this year it to understand all that i don't think he would have that and so he was he was kind of encouraged to be forthright and a lot of sort of thing had he had an attorney i doubt anything and sort of using the slang or it up then he would have a better case but this particular case he did he he has a long history and he wasn't fired and i think that's why the judge said it is alternative rule and had you been eligible i would have granted it because of everything that you've told me because of your long history because of everything and i think he held that in the petitions favor when he looked at the discretionary aspect had he been able to get there yeah but he couldn't get their act i think all of the things that discretionary matter it was pretty clear he'd be eligible for that except for this one conviction in and seventy eight right but your own if you flip that around if he didn't admit it and he didn't put it on exact location and the immigration judge found out about it it's questionable whether or not he would have gone to that secondary ruling that  yes which many incarcerated to get attorneys i mean there's a network for that and they find the attorneys and they and or their we get free legal services which is available also to get this any gave him that chance and he gave him another chance and he gave him another chance he didn't rush him to the thing he said look i and i mean i think the immigration judge which goes a little bit to the due process turns gave the ceiling the right to be heard the fair hearing tell them what the issue is he even denied the motion pretty met the application because it was untimely it felt was unfair and that's why you heard all the discretionary evidence because if he found he was ineligible right off the bat he didn't really have to get to the discretionary history didn't have to hear all the evidence but he did he and to the gratian judge's credit he really let the petitioner go on for pages and pages of what is what is the narrative basically of his life and the immigration never to immigration judge never so i think the fact let me go on didn't help him well well unless there was some evidence in that testimony that that raised by preponderance of the evidence which is the standard in the regulation that he was in fact not convicted of aggravated felony and i think that is all part of possibly immigration judge didn't want to cut him off just he just let him testify and if he had said something that raised as my brother said it's brief that it was a gift that he gave him as a gift or you know it wasn't that maybe that would have been a partner so the evidence that it was not an aggravated felony but he never said any of that i mean it's all hypothetical in speculation and he was given clear convicted of an aggravated felony in other cases they've dealt with this regulation i mean there's no doubt it's controlled substance violation to be the big board is not defined in either terms in this regulation and i think it would be helpful moon it's not realistic third point that realistic for these people to be represented in the middle of nowhere i've been down there miles away from phoenix a phoenix bar doesn't frequent there and a lot of these guys don't have a whole lot of money and free legal