conviction shows that the offense did not quote necessarily involve elements corresponding to a federal crime of violence now the government concedes that for that reason this conviction would not count for deportation but the government nevertheless says that this very same conviction is a crime of violence for cancellation purposes but barclays doesn't allow the same conviction to simultaneously be and not be a crime of don't a burden of proof isn't going to affect that analysis because as the supreme court said in the louis this is a purely legal question of what a conviction necessarily established and that's in contrast to factual questions like the law to rest on only the least of the acts criminalized and the burden of proof doesn't affect that because there's never going to be say a forty percent or sixty percent chance that a conviction is disqualify it's a binary legal question it's questions one is under what circumstances given your reading of the statute would the immigrant have a burden go into eligibility for relief which involved deeply factual questions like yours have presence in the country like extreme hardship to family members or mr so say that war and satisfied his burden of proof vest all of those factual question as to matters relating to a conviction it's there is a separate question about the burden of production which was the court's third question in its order granting rehearing that question it is no longer presented because the government isn't a question of missing documents or the like then it really is a binary legal question so the burden i'd say there are two ways to think about it why is that you satisfy the burden by demonstrating what the right legal so it's a pure legal argument and a burden of proof isn't really going to do much work much work either way they are ok suppose the shepherd documents not this case a different case suppose the as an example if the records said this was intentional causing bodily injury which under this court's cases would be disqualifying then the record would necessarily a sound question a crime of violence of the conviction would be on people so so there there isn't any discussion of burdens on people in this context and that's that's part of what we're trying to argue that in burden of proof was raised in bunk reef but not part of the decision conviction that suggests that i was convicted under one part of the statute and not the other but in fact that judgment was then be it on in this relief because of constitutional grounds or but that indictment was constructive amended in the colloquy and in fact as part of the plea bargain with counsel's ations and why we actually changed the nature of the plea at that point because there is what sure appears on its face to be a record of conviction that looks disqualifying the non citizen would bear the burden of showing that that wasn't the final word as to that conviction so the burden would factor in there you carry that burden by saying for example i've never been convicted of anything stop or can only think i've been convicted is this crime here and here is what it is in here and there are no shipping documents proof to establish that he satisfies the clickable debility criteria so what is the relevant eligibility criteria here is that the non citizen quote has not been convicted of an offense under the relevant provision so the case turns on what is the meaning of having been convicted of an offense and that's where the supreme court's recent cases supply the answer there's a very formal definition of what it means to be convicted of an offense as opposed to having issue i assume just was is as to is good moral character which is the final criteria and you consider that to be resolved on this record or would the parties be entitled to a new hearing the question could be resolved on on this record there has already been testimony i think i think typically it would be the i g who would make that determination in the first instance and the idea here combine these two issues and essentially said this conviction is either going to be statutorily disqualifying and it's actually there for to determine a lack of  that is fundamentally iraq these are two distinct legal rules that operate are two independent dimensions one doesn't go with the other and and if they did there's no reason that that would be limited to divisible statutes as the government argues that would be true in all cases in which the picture arises under it overbroad statute but again we know from our grief that that's not the case i just have a question  you the morning your honor leon fresco for the government your honor to start with this case isn't just about mr sida it's about millions of people who are eligible for this exact benefit and there are some more thousand slots only your honor and so what congress said is if all of those millions of people trying to squeeze for those four thousand slots we better be absolutely certain that this person wasn't convicted of a criminal offense that's of this qualifying offe that's why the burden is placed on the petitioner in that situation and that that burden is not only reasonable that's what congress did and i think a good case that this crisis all of this is this court two thousand and six where it goes through burdens and it says there's no burden of beyond a reasonable doubt it's clear and convincing evidence into the portability context and the concerns about burdens are done by the congress because not want the result that was happening in the categorical approach case where an alien may have convicted they have committed all kinds of egregious conduct but because we couldn't foreclose the remote possibility that one corner of the statute was uncovered the alien wasn't removed here where we were trying to determine which of the millions of people were entitled to the four thousand slots we wanted to make absolutely certain that that was a person not convicted of that  than four thousand aliens and they this whole year that's the number that can be like that can be given this benefit and so what congress is saying is you better be extremely careful when you're giving this kind of large s of taking some purely evil legal status and moving them to a green card that's extraordinary really there's no intermediate thing you're giving them a path to citizenship that that person isn't convicted of this kind of conduct that's why i'm here today to votes because this is a that situation where a statute is not the visible there's no way there will ever be a record of conviction that will tell you what happened because the statute is not the visible so we categorically not the modified categoric approach the categor say the person was not convicted of an aggravated felony which means the analysis is the same you are you bet your burden of proof of showing that there is no record of conviction that could ever in one hundred percent of the pick one of the to do this it will track right your honor but that's by the way one of only three or four possible scenarios here so first yes we could look at the shepherd documents but that's not the only evidence year issue that comes up in the prize on the what if what if the burden starts on page six forty two of the record alien has the fill out an application and they're asked did you commit any crimes give us all the records and information that's what that's how the burden starts if they don't give the information and  information they can be then i just on that or they lied about the conviction they said so that's they have the burden they have in this and the statute says you have to comply with all instructions that you're given on all application that's in the statu the alien doesn't produce documents that are available to the alien the alien loses in that case if the alien says i try like in this case and there are don't document what the burden of proof is saying is you have not  portability the deport ability analysis that is just false here on our congress does not want that analysis which we're so used to and i understand we're used to it so we keep thinking that's the analysis that is not the analysis in this case congress wants a different analysis to produce a document if we want to remove him on the removable grounds that he was convicted of offense of bodily injury instead of offense of physical cause if you show you are convicted of a crime that's indivisible right then h prove one hundred percent probability that you were correct that is why my grief is different because ok now you show you convicted of the divisible crime yes and you've shown that your notion of documents haven't you shown two hundred percent was appropriately concerned with that the alien had done what was called the west police or what is known here as an out for plea where you say i'm playing to the bare minimum that it takes to get me out of this and so when you when you plead to the bare minimum judge that in that instance where you pled to the bare minimum you met your verdict but that's different than here where if we have documents and i think one of the best documents is why is it mr zazi that asking his attorney to say this is extra information that is relevant here and congress is putting this burden because of the fixed amount of slots and the millions of people who qualify for this imagine if we actually have people who are these criminals you've agreed that there are no documents and you who greed therefore there is no way on the shepherd documents to resolve the question which don't go through the burden of proof analysis that the six courts previously that this court cited went through and that's because the issue wasn't raised because the issue wasn't appropriate to be raised it was a categorical approach  where that means that one hundred percent of the time the alien was not convicted but let me just go through why that there are many other instances for instance suppose the point of hands you a shepherd document he says this is the court reporter transcript of the police hearing and it says  to the lesser offense and the government says wait a second that's from a court reporter that doesn't even exist quite so now there's going to be an evidentiary issue in that case is this a correct court reporting or is this not this is a purely a legal question and they might get a clerk to say this court reporter never works agreed that's not this case well but but your honor a statute has to be interpreted uniformly in all instances another one is foreign convictions your honor in foreign convictions we can't just look at  and say well what's this for and conviction about does it fit or not a lot of times you'll have countries where the statute just says terrorism and you say oh my god this person was convicted of terrorism and they'll say but in my country there is speaking out in the public square against the government and you won't be able to find that in any legal code i have to provide evidence that shows that in that country people can get prosecuted for terrorism first speaking out against the government in a public square and that will be an evidence based analysis your honor and so what the statute does say is this entire analysis is evidence based and not like moncrief where there is a one hundred percent chance that the person wasn't convicted and so we don't have this burd of proof here we have a fifty percent chance of said julie that this person was convicted of a disqualifying offense and what we did what we the government yes there is no documents right now that doesn't mean there were never any documents we don't know we passed that's that you made it and it said and i will give you the you have the key line here it say it in the legislative history of this that you which is located in the sorry senate report sorry house report one zero nine zero seven through it says this new paragraph codified is that an alien applying for relief or protection from removal there is the burden of satisfying the eligibility requirements statute meaning the state you cannot be sliced up into this qualifying and qualifying offenses then the alien can't be deported under that rule whether it's in the cancellation context or the cancer or the nonsense aleisha it's not under the statute in fact that mind what it says is it talks about a categorical approach and then it says here are the exceptions to the categorical approach one of them being the modify categorical approach and i think it would be a very difficult proposition to take one footnote in mine create a case about the categorical approach that does not discuss at all what congress did the burdens or anything else and say that this stuff resolve the issue when six circuit intended that's not what i'm saying that's what congress you context where a conviction on who can visible statute without any schecter documents is deemed to be a conviction either and we don't know i can't point you to anything because all of the cases where this comes up your honor our deportation cases where the government has the burden by clear and convincing evidence but i can point you to the six circuit court decision but you've cited six circuits without any being in the opposite of the second circuit has the same categor receive cancellation of removal we want a person with a clean record getting it right no your honor but here's an important point then based on that i think would be inappropriate here because the b i a brief in this case was filed the sender of twenty thirteen and m could have been made in this number thirteen and i'm certain this case then could end up back here again but it doesn't have to be for someone who weighed that argument and who didn't make it for we're now twenty sixteen for three years this argument wasn't me your honor others four points in a bottle if i may first life friend has made several references to the four thousand spots available for cancellation just to be clear the question here has to do with the burden of proof to establish eligibility for every form of relief including asylum which of course has no ceiling and forms of relief under the violence against women act in several other areas of immigration law moreover the fact that these forms of will be for ultimately discretionary ways in favor of an under inclusive approach not over inclusive approach the supreme court has said that whites now encourage shorey and margaret that to the extent that there is concern about keeping out the truly bad actors and not giving them th extraordinary relief that can be here i'm told at that second discretionary phase of the analysis which in this case was where the ivory found that the equities were particularly powerful way favorable in favor of mr say that person was convicted of the aggravated offense we just can't prove one way or the other i think you would be saying that notwithstanding what he said in the courtroom since there are no shepherd documents he wasn't done with no tape recording no nothing we don't know we we don't know and again this is a mystery or in effect state recordkeeping practices in mr nader cases in particular are fairly unreliable because if something could be missing in the sense  used to exist and it doesn't anymore here it seems that that isn't the case not only because the government consumes as much but also because mr sarsi are white cassock the court in the period in which they would keep whatever records had ever been so then let's assume there was never anything but the reality that in the who are he pled guilty to the aggregate of that if that were than reality then i think your logic would be in fact it's not legal reality because unless there's a shepherd document we don't care what happened in the court that that's correct and that's again because of this formal definition of what it means to be convicted this is what sheppard itself says and then integration is as a part of shepherd as well as the many centuries worth of free shepherd immigration cases going back to ellis island era cases that say we are of limited to do to understand what you know it's it is it was convicted of the only way they answer that is by walking to the record of conviction what may have been his main argument is moncrieff does not apply in this situation now i raise the prospect of greenland to the agencies so it can considered the you don't believe you waive certainly and i think the government has it raised a failure to exhaust argument until i hear some threads of that in its oral presentation today i sitting there i didn't have time in the thirty seconds to to find the precise address that that doesn't get you very and again if the court prefers to remain and that is absolutely within its discretion i do think this is a pure question of law as to which the that the fact that congress wanted to impose this high bar and i just want to be very precise about what our argument is we are not disputing that there is a burden of proof that is on the non citizen the question is just what it means to satisfy that burden of proof and when congress amended the i and a in the real life the act and in one of the several other times that congress amended the i have a since the term necessarily was introduced in court decisions in the one thousand keane's it has not once changed the meaning of conviction in the relevant sense so again no question he bears the burden but what is it that he bears the burden to prove he does not have to show affirmative for you that he was convicted of intentional or knowing