constitutional rights today she's sixty four and appears before this court for the third time as part of the game and it's consumed much of her adult life it was thirteen years ago that the h s began removal proceedings against her after she spent years providing the f b i with material intelligence on her former employer the cali drug cartel she petitions this court for several forms of relief to address the risk she faces as a drug informant because her criminal conduct ceased in one thousand nine hundred five before your ira this court should and in those cases the conviction and the plea were the same date both of which occurred prior to era and now the court had occasion to consider instances such as must be a scene if you have any cases it's whole the opposite  recession's which the government recently noted there twenty eight j however that case is distinguishable in one important reason and it's it's for the fact that miss b a seni faced a legal consequence because of her conduct alone under former i an eight to the inability to travel is a severe sanction and such potential banishment is the type of a new legal disability that land grabs itself says that retroactive statute should not impose on any person and because based on the date that she was arrested that she would be therefore eligible because that was before the change in the law is that what you're saying that's correct your honor it's it was on that date in one thousand nine hundred five when she and the government  indictment on her for and charged very specific conduct conspiracy conspiracy but aren't we supposed to look at the completed acts is that what you're arguing that the completed act that's been outlined in the law for us is just the arrest and not the date of her i just i mean that's what we're kind of drilling down on why wouldn't it include the date of her right and the charge should should be the anchor point if you will for retroactively analysis because because there's substantial reliance interests that attach when you retain counsel at the moment you're charged and counsel consider all the legal consequences as well as the legal remedies available to you at that time and it would be difficult to impose on any counsel the burden to predict any future changes in the law and thereafter advise or counsel accordingly and such is the burden we would to weigh for exclude ability as well as waive her deport ability and then the law changed i notice that you chose the regulations applicable to determining if a person is eligible for section two twelve c waiver before the agency below but it doesn't appear that you renewed that challenge in europe deal to us that these regulations provide a reasonable way to determine the question  first impression before the ninth circuit that the date of completed conduct should control for any retroactively analysis because that's more consistent with the tenets of land grant and with the supreme court set out there you're like you're fighting in the first  you know hold the recession's did reach that however day it important at the very minute or says you know that and i'm quoting your honor or tell us has mixed language and does not reject the position that the date of conduct should control to me that leaves the door open for a court faced with the right facts to find  that the date of conduct should control where there is prejudice and is here because must be a senior counsel would have been able to predict the legal consequences stemming from the charges that the government filed against her it seems more just that she should be able are able to apply right let's talk about particularly serious crime it seems like blend dino versus dino medina says that the b i only needs to consider three have committed a particular serious crime we don't need to react at that juncture the question of dangerousness they do not change the legal standard of what it takes to find a particular serious crime and as planned and this court's most recent authority   and that case again it's it's a two thousand eight hundred case from this circuit but importantly gomez sanchez in there quotes to authority which similarly talks about a case that lends credibility to this assertion that cases  it's another ninth circuit case in two thousand and thirteen and there they certainly clarified that the french rescue factors are essential all four of them and that it's a different question whether or not you do you look at the withholding removal on portions of the p a p s r there were apparently there was apparently reliance by the i j on there is facts that were contained a while she was serving a time in dublin but they didn't make an express note of changes they did they didn't get to the bottom of what the facts were from the pre sentence report judge bryer did note however that this be a senior disagreed with the facts in the present report now she didn't agree with one was that she was only the middle person and that wasn't a very important factor in the conspiracy to import cocaine and the other was that  in either event and if we're neither of it what i want you to do is to tell me what portion of the beyond a opinion or proceedings before the be brought these issues middle person amount cocaine to the issue to the attention libya with your claim that they were not found remembering better now your honor i don't think that was specifically mentioned in our in our appeal to the b i i in any event i do think there still prejudice when the b i i fail to consider the totality of the evidence with respect to mr c scott claim well if you don't bring up an it please the court victor lawrence some behalf of the attorney general this court should recognize that this be a cheney was deportable as a result of her conviction the waiver she sought was to remove that conviction this is not an exclude ability case therefore when she was convicted in one thousand nine hundred eighty eight it was one year after the repeal of the two twelve c waiver so the waiver was no longer available to her and this law was not in permissibly retroactive with respect to her at all because she was not excludable as my opponent started to suggest because she was not applying for admission to the united states the issue is that she was deported as a result of her conviction for an aggravated felony drug trafficking crime so it's a conviction that triggers your deported bill absolutely or right and that the  it's just incorrect in the facts or square that this was you cannot get away for based on the conduct when you're talking about a deportation ground for removal which requires that she has to get counsel on all of us know it the what matters is the conviction because what you're looking at is whether the new law the repeal attaches a new legal disability to past conduct and but that the conduct to past events is scuse me i misspoke but the past events that we're talking about to remove the the deportable ground is the conviction itself and that occurred after the repeal of the waiver and that's why there's no impermissible retroactive effect with respect to two twelve see if there are no more questions on that i'll go to the particular serious crime ground here the board remember that what happened the last time the case is at the ninth circuit and last time the board said based on l which was a attorney general opinion by attorney general mukasey that this was a per se a particular serious crime drug trafficking of a felony drug trafficking crime so it didn't analyze any of the it never said you have to make a separate determination for dangerousness and the law doesn't require that blend you know doesn't require that no there's nothing in the court's durst prudence that says with respect when you're considering a particular serious crime you must do a separate determination and dangerous to the contrary the cases of this court injures presence of this court suggest that know it once you determine the first three factors it's presumed honor thank you i'm the one who brought gomez sanchez to the court's attention because it actually supports our position in a twenty eight j about or because it says in it that no separate determination for dangerousness is required and i would have to check on that he was citing to a citation within sanchez and a citation i think within that case to suggest that there is a need to determine dangerousness but here when the court has already considered the other factors and under to this court's ders princeton plenty you know and gomez sanchez there's no need to do a separate analysis based on whether or not you're a danger to community and even when the last but this this is the previous time that this case was before the court is important for other reasons as well because of the last sentence of the opinion prior to the dissent in part by judge of scotland says petitioners remain in claims are dismissed those are the claims involving the convention against torture and a particular serious crime came claim now the petitioner of course had an opportunity to seek further review of this decision she did not do so this decision is final it dismissed those claims don't we determine that based on rest judicata ok so the decision is final i mean if that's what you're arguing other claims are dismissed because there's nothing that suggests it was because they were moot but let me get let me go on if i may your honor because it reaches the same point so when these claims were dismissed she had an opportunity to challenge this opinion she did not but then when it went back to the board and the board issue to remain under order to the immigration judge this is at the end of page nineteen the board indicated that the ninth circuit dismissed these claims and therefore they're no longer part of this case so she had an opportunity to challenge that remained order but she did not and then when it went back to the immigration judge the immigration issue there was no testimony at all concerning the convention against torture and state created danger nothing was brought up with respect to that so she waived the issue first by not challenging the dismissal from this court then not challenging the  order from the board then she didn't bring the issue of cat or state created danger up to the immigration judge and then she didn't raise it again until she brought it back to the board when the immigration judge ruled that she had committed a particular serious crime that the conviction was for a particularly serious crime so she's waived that issue of committee against torture a particular serious crime in a number of different ways and the court can't she can't just revive that now and petition for review after all those waivers so you're saying rest does not apply well to the extent because if it does apply and i'm not sure i'm following your reasoning sure so normally race judicata is when there's a decision on the merits as i as i understand race to color principles when i when i first looked at the briefing that was done back in two thousand and eight i thought that there were merits decisions based or that they were there was no jurisdictional claims based on commission against torture a particular serious crime so i was confused by the court's language in this case does seem to be an unique posture in that it's not really clear what the pyre panel intended at least from my by reviewing it so i am strongly on how to interpret that so really want to hear from from both sides on that you're saying that it's not a merits decision and so therefore that the prior decision was an american decision so therefore i'm saying whether was merits or jurisdictional it doesn't matter because missed it was dismissed and she had the opportunity to challenge that and to seek further review but she did not so whether whether whether it was intended to be a marriage what's your best case on that but my my best case is just that there's no precedent for the idea that a court can dismiss claims without saying that their mood or in this in this regard and then have somebody be able to revive them even after it went back to the agency which issued a new remain and order saying that you can't bring these claims up anymore that wasn't challenged either then she didn't even bring it up in the immigration court that based on those multiple waivers that that issue has been resolved you have a combination of  seems like i think it seems like the b i a decision specifically talks about the middle person and primary sources reasons that the i j a found crime to be a particular serious crime  and i'm not quite sure how she framed it but she did talk about make challenges to the factual the terminations and arguments by the b i e in reaching its conclusion on whether or not this was a particularly serious crime right and of course the first periods of this court says you can't really weigh those those factors no of course we can't do that and i'm a clear about that but we do well and the only thing we look at is whether or not there was a basis in a substantial basis to support the s determination i think or whether it was legitimate basically whether they followed the proper that standard well and in this case well and whether they relied on appropriate evidence sure and here there's a question on whether or not the i a relied on appropriate evidence evidence when it relied on contested questions in the pre sentence report of course contested evidence pre sentence report looks like the cases that you know able to to find with respect to that do they don't they don't deal with this specific factual scenario but they do address it and make clear that you know the ids can rely on uncontested facts in the pre sentence report here this was clearly contested and the sentencing judge ruled in her favor so how what's your response to all of that well so you're the first response is that there is no need to do a separate determination dangerousness so that the other factors that were considered the other three factors though doesn't this bear on the other three factors  the first three factors and whether she was the middle person or whether she was the source of the drugs it seems like it would overlap with all of them and that's why the fourth factor really to me is not that major of a of an issue but it seems like it would bear on overall whether or not on the be a cine factors that remain actually the way the way i read this board opinion page three when they're discussing that she was only a middle person and never classified as a drug supplier or organizer and they're quoting from the present report to me that's that's really going to the fourth factor even though they didn't have to make a separate determination of it because you're looking that you look at is this person a danger to community and you say well you know she was a middle person well but it also goes to the first three the nature of the conviction the circumstances an underlying facts of the conviction and the type of sentence imposed and then you go on to the fourth factor on whether the type of crime indicated that she would be a danger to the community certainly it goes to the nature and the circumstances i mean does it not whether or not she's the source and she's a middle person i don't know that we can dissect that here at this point in time when looking at these factors so but i'm just troubled on the i j a clearly did seem to say that there was she was you know she was a middle person based on his read of the pre sentence report and this was not challenge to the board it was not not exhaustive and under barrass ashcraft again i would i would say that even when what you have needed to raise that i guess is what i trying to figure out based on your argument so if there if if in fact immigration judge if she believed that which i don't concede if she believed that immigration judge relied on him procreate factors in coming to its legal conclusion that considered that argument having not been made has been it's an exhaust says quite a long history as we've noted so at what point when should she have done that when this got remanded back before it got decided the first time  they really got to consider these other factors and i think you know in the first several paragraphs they consider all these things and yes they mention these things which which were in the pre sentence report but that doesn't diminish the fact that they considered all these other other factors and made inappropriate determination that she was a danger do you mean all these other factors just be clear for me what you mean because it seems problematic and i'm curious to hear your wavier argument but it seems problematic if the i j a made a determination on serious crime based on the french as the three francesco factors that you just limit it to those and relied on evidence that was clearly contested and especially if the sentencing core you know in this case all those contested facts in her favor or did not consider i think that's exactly what  l and they're raising a now and i'm not quite sure that they needed to do what you're saying but i'm here i was open to hearing your explain i think they did because the virginal i j's consideration of whether or not she committed a particular serious crime occurred in two thousand and six and there was there were on our second petition i read it sent back because the pam prior panel said hey you didn't really do your job or we need to do a better job of determining whether or not this was a particularly serious crime right so it goes back and the immigration judge considers a number of factors and determines that yes it was a particular serious crime when the petition the case there was a lot of discussion about re weighing the evidence which of course you can't do now the question is did that did the immigration judge rely and something he relied on and was that a legal error to do so and our position is number one that wasn't appropriately exhausted with with the board after that point and number two even that it wasn't improper to begin  with because because he considered a lot of other factors that were not in the pre sentence report when it came to the fact that she was you know involved in a conspiracy to distribute a large amount of cocaine that i understand that but when they're all mixed in at this point just trying to figure out how to resolve that if she did no way but without sending it back for them to make a determination taking out those facts i don't know how much that affected the i j determination right and our position is that the court should not send it back for any additions she's had several bites of the apple at this point and which did not exhaust this issue in the last round to to the board but given the fact that the they relied on the court they relied on substantial evidence and other factors on those first three factors besides this issue about the middle person it's your best case on that i mean when there's problems with some of the evidence that they decide that they relied on what's your best case that it doesn't get a rematch best case it doesn't get reminded on this issue the particular serious crime is that two things first we know the law and now that that this is per se a particular serious crime an aggravated felony drug drug conviction so we're looking at the only reason why this is a discussion at all is because that case came out after the better while came out after the fact otherwise the board would have dangerous generally and in this case when we consider all the evidence we the agencies decision that this was a particular serious crime should be upheld all these other issues are are looking to reweigh the evidence and  just not what this court should do to be clear lots i understand the read well that's not allowed but what is allowed is to look at whether or not the i j a relied on fact the facts that it couldn't and that's what looking at and that's w do have purview over that sure and i would suggest that the i j a relied on sufficient facts to make that determination that she was they know that he knew that she was convicted that she was part of the major disc conspiracy that she was convicted of a exactly right because they found she was the middle person they found that she was the source and if they were in fact and the fact that she was sent in for thirty months as a result thirty months versus you know other cases they get particular serious crime are the sentences are much higher that may be so but of course she served as a government witness and that's what reduced her sentence all the reason also still to determine i mean does the get to consider that but the fact that it was a  sentence is yeah that she was she cooperated well the fact that she cooperated doesn't go to the issue of whether it was a particular serious crime at all the fact that she cooperated it goes to the fact that the overall sentence served two and a half years but and then it would have been longer if not for to reduce sentence most likely and all that together is sufficient to satisfy the first three factors of the protests if that test there's no separate need for danger for dangerous sentence report ours questions just because judge pryor you know may not have adopted why can't the o j look at the presents reported in the ny i see no reason why the immigration just can't do that few points honorable i'd first like to respond to judge by this question from on the last time i was here with respect to whether or not we exhausted her particular serious crime claims it's that's breached and it appears that pages sixty six to seventy nine of the administrative record and on seventy one your honor i've looked at those and i don't see any argument that the i j a violated his role by looking at this pre sentence report eight which only asserts that it would be claims themselves or we deem waived and not arguments within them your honor the reason our brief is more clear with respect to the particular serious crime issue because we emphasized that the twice mis applied the law in evaluating and undoubtedly whether or not the evidence weighed in her favor of the specific facts that are in dispute in the present report about whether or not that's a particular is crime is a factor we argue that they  fourth and the important case as as the government correctly know if they did sign the twenty a j we also point to it because it really clarifies this issue that the french rescue factors which are alive and well are the controlling legal analysis in determining whether or not someone has committed a particular serious crime that's a very discrete question from whether or not once it's been determined that you commit a particular serious crime you are eligible for withholding removal in fact it's a practice times are you arguing that the still on that fourth factors still something that needs to be considered your honor yes so let's say we just assuming argue until we disagree with you is that fatal to your argument no  just bear with me and say it's the three francesco factors we don't accept your argument on the fourth ok how did she not weigh the argument that you know you're making didn't brief it sufficiently in any event they similarly government waive their argument to waive your honor yes because they didn't make it in their brief that's right your honor and what's your thorton for that we brief this that page thirty five your hon whether or not the court and its two thousand and thirteen order dismissed the issue it's very clear that they did not dismiss it or reached that issue on its merits so this issue is alive before this court and its two thousand and thirteen remain in order when judges sca dissented he used the word deny and dismiss in the same sentence to have different meanings he said he would disagree with majority and deny their choice to remain for the particular serious issue and then they said he said that he would agree with the majority dismiss the other claims and for that raise the issue of whether or not she should have a merits hearing on the cat issue because the b i a a although it was an erroneous interpretation they read the two thousand and thirteen order to suggest that the issue was no longer before them the government  relied on that error and similarly did not brief any argument against our can't claim so in speaking of waiver we contend that the government has waived any argument against the merits of our cat claim and even if this court doesn't find that the government has waive  an argument against the merits of our cat claim we believe that the i a e a made substantial legal error when they failed to consider all the evidence the standards clear and the regulations that i j in the b i shall consider all relevant  evidence and that didn't happen it was this court in highly beholder in two thousand and eleven that noted that when the b i a did not give due account for record evidence supporting hailes position were adequately explained it's not a fertile that there was prejudice