are good and you can hear us and we can hear you so that's the critic can hear you fine right they proceed with the argument good morning and they please the court counsel this immigration case involves two questions and the answer to either one of them suffices to grant the petitions for review we would submit the court only needs to focus on the first one which is whether mr elman's us conviction is under eight divisible statute it's not and that follows from de camp as correctly understood by the fourth circuit by the b s a itself in china rest castrate hon and by several panels of this court not just rendon but also core nado the d m martinez united states versus willis and just last month lopez like one statute is clearly visible at least potentially because it has no alternative phrases and disk amps says we're we we do is we try to see if there are are different phrases that can be separated out and here it could be done it's just that when you go to look at the charging document it hasn't been done right judge wofford at the very beginning of the day camp opinion the court makes clear what a divisible statute is and it's not just one that is drafted in the alternative using the word or it's quote  can commit it with the intent to temporarily deprive so it's just there are different ways you could satisfy that element but the element is still just the mandra judge walford you're completely agree that there are different ways to commit this single crime but it is undisputed that we do not have a situation where you have multiple crimes with alternative elements what you have is a single crime that can be committed in different ways what would you agree that it is possible to be convicted of a crime involving moral turpitude under this statu but it to this way when the jury comes back with a verdict of guilty may i conclude that the defendant has been convicted of any fifty was convicted under that provision yes most certainly i know strong and it could be a crime involving moral turpitude if there was a permanent intent to deprive the owner of the vehicle of his property but in order to determine that question counsel yes or no i'm trying to answer the question is certainly mr oman's or was convicted under ten and fifty one no dispute about that the question whether he has been convicted of a crime involving moral turpitude implicates the tailor shop or doctrine so and that hand auto determined if we can't tell from the face of the statute as judge wofford was just teasing out with you then don't we have to apply the modified categorical approach to trying to answer the question de camp says you can only go to the modified categorical approach if the disjunctive phrasing of the statute in fact refers to destructive elements setting out separate crimes and what is the difference between a crime involving moral turpitude under twenty fifty one and eight hundred fifty one conviction that does not involve a crime involving moral turpitude if someone is a can is convicted on because they took a car with the intent to deprive the owner temporarily of possession or title as was the case for instance in people versus house cited in the federal defenders prefer someone took a car and returned it the very next day undamaged and that can result in a conviction under ten eight fifty one a but it is innes so why is that the visible statute of cuz the jury in california does not need to decide beyond a reasonable doubt whether there was intent to deprive the owner of a vehicle for more than eight short period  temporary period let's say a hypothetical case right the charging document only charged an intent to permanently deprive the owner of the property right the defendant went to trial the jury was only instructed in order to convict you must find that he intended to permit to deprive the owner of property it seems to me in that scenario we do know that the jury if the jury returns a verdict of guilty we do know that the jury necessarily convicted the defendant of a crime involving moral turpitude and why would we allow that to qualify i think that is the same question as would have been as was addressed in de camp under the california burglary statute there you could hypothetically have formulated a situation where mr de camp had been charged with breaking and entering instead of just potentially either breaking or entering or entering by fraud or deception to shoplift and you could have had a situation where he would have been convicted so that the jury instructions would reveal that they can't nonetheless that what he might have admitted what a couldn't we say in one case that a crime that the conviction was from a defensible statute and in another case that it wasn't because the charging documents were written differently how do we deal with that there's a lot in that question judge it could and i want to make sure i address it all start just by stating our position as to footnote two which is that it makes eminently clear as does the rest of the opinion that no matter what it is you're looking at and i will address what i think the court should look at but no matter what you're looking at the search is for elements in the richardson versus united states sense of elements facts that must be charged and found by a jury beyond a reasonable doubt it's not alternative ways of committing a single offense so in the search for elements which i and that's contrary to the government's position the government thinks you can ignore elements altogether we think that's not a plausible reading by any means of the day camp opinion when you're looking for elements what should the court look at obviously the court looks to the text of the statute that's not in dispute and there may be situations where that is enough to show that there are multiple elements that need to be found by the jury beyond reasonable doubt one way or the other then you could go to the modified categorical approach you can also look to state law if the court certainly does not foreclose that in fact it leaves that possibility open and there are many documents and in the this and from the nile the rendition case says well merely should be read to mean only the court only looks at the sheffer documents how do we know that the other cases applying the categorical approach the supreme court has looked at state law in order to determine the elements of a crime to see if they sweep more broadly than the generic offense an example of that is chains versus united states which involve the florida attempted burglary statute which was very broadly drawn on its face looked like it swept more broadly than the generic offense but the supreme court said the florida supreme court had narrowed its application therefore it was a categorical match this court has done the same thing merely to i think merely is responding to justice alito is concerned in dissent that this was going to be a difficult thing to do and the the the majority says no it won't be difficult you can look at the shepherd documents because they will identify the elements now i think that is true in federal practice as the federal defenders amicus brief explains in detail it may well be true in many states or a stick sions it's not true in california where there are different charging practices many crimes are charged c lee and the practice may in fact vary from county to county however i think if you are talking about a jurisdiction where the shepherd documents will clearly lay out the elements of the crime they have to be separately charged they have to be separately found by the jury then i or intent to permanently deprive could we say that here following the direction they cam the crime is divisible but then another case of the charging documents and as they do here temporarily permanently to  would say it was indivisible as this is one of the concerns with that approach which judge kozinski in his decision his opinion dissenting from denial and rendon freely recognizes the categorical approach should be categorical a conviction should produce the same result in all cases which is why it's important if the court is looking at shepherd documents to be mindful of the task here the task is not to find out what the individual did the task is to find out whether this statute in fact has multiple crimes that have different elements there will be some situations where the shepherd documents might illuminate that there will be many situations such as the ones this court encountered in coron otto and martina's where the where state laws clear from other sources whether it's the or state decision a law or a pattern jury instruction that says the jury has to write down filling in the blank what the drug is which makes clear that the nature of the drug is an element of the offense and so there's no need to go to the shepherd documents once the jury has rendered its decision how does the superior court judge decide whether he or she is sentencing a misdemeanor or a felony under your theory well the  quite honestly that's not that i'm not a criminal practitioner in california so i don't know how it plays out in practice but generally speaking because this is an offense that can be can be convicted based only on the temporary taking i think a sentence of three hundred in one year or less does wind up being a misdemeanor but you could be sentenced to less than a year in prison on a felony in california i mean you could theoretically give the defendant probation so that doesn't  that may be right judge tolman and i must confess this isn't something that that i focused on because it's not an argument that the government has made and it doesn't it isn't raised in this case because this clearly is a misdemeanor i'm trying to figure out how we're going to write an opinion that dresses what it is that courts and immigration judges and practitioners can look to in order to decide what is permissible in light of disk cams and you're grasping at straws here trying to figure out what the distinguishing elements are factors are that question i can answer just on the court in decide whether it's a sentencing court or an immigration court looks to when it's trying to determine whether the offense is divisible looks to determine whether there are alternative crimes that's defined by multiple elements sometimes that's clear from the text of the statute if there are subsections for instance sometimes state law will be helpful whether it's decision a law pattern jury instructions sometimes the shepherd documents might be suggested and with those that that is what the court can look at to decide whether the offense is divisible if it is divisible then you can go to the modified categorical approach and try to determine which version of the crime not which method or means or way but which actual of the crime of the multiple options he was necessarily convicted let me ask you let me ask you then in moncrief right the statute there if you recall listed about ten different according to you ten different ways you could commit these the last of which was i think possession with intent to distribute marijuana right i believe that's right the court then referred to the plea agreement which in which it was very clear that the defendant had pleaded guilty to the version of the offense involving possession with intent to distribute marijuana but that statute was drafted the same way this one is that just had a bunch of clauses set off by a war and the court there seemed to have no trouble saying no the version of the offense this guy committed was the last one possession with intent to distribute marijuana and so it proceeded to do the analysis from there same thing in the loop the case from just last term if i'm pronouncing that right again it was just the question was whether all of those different drugs that were listed in the in the state statute right it an overbroad list and the question was whether you could go to the charging documents and figure out which drug was the one that he actually admitted to and you couldn't so therefore the petitioner won it seems to me don't get me wrong my questions are i still think that the position here should be granted but i think probably for a different reason than you do i think what happens is when you go to look at the charging document here you can't figure out which version of the crime he was committed convicted of and therefore the conviction is overbroad i would certainly agree judge wofford there are lots of different ways we can win and i do not want to suggest this is what i would say is that the even if you were to go to the conviction documents in this case the camp focuses the analysis on elements and it is undisputed that this statute ten hundred fifty one of the vehicle code does not have multiple crimes with multiple elements the government has not disputed that at all and rightly so because california law has been very clear since people versus our meo that you can be convicted under this stat regardless of whether you have your intent is only to deprive temporarily or permanently but if your honor i'm sorry judge but what do we what do we understand from the model jury instructions in california does that tell us anything about this the statute as the  pattern jury instruction is generally a reliable indicator of state law the old one which was in effect when mr al monza pled cal j i c fourteen point thirty six says had the specific intent to deprive the owner either permanently or temporarily and the point is that the case law in california which is laid out in great detail in the federal defender brief but including people versus harum e o makes clear that it is not in it the jury does not need to agree on whether the intent to deprive was temporary or permanent therefore it is not an element and again i'd say it's not disputed in this case and also could you shift the burden of proof question because this certainly if based on your concession that there might be crimes involving moral turpitude lurking under a twenty fifty one conviction and he has the burden of proof to establish eligibility for cancellation of removal what's wrong with the agency's determination that he simply failed to establish a pri a says the same thing or not convicted of a crime involving moral turpitude same thing it is not the same thing your honor proving affirmatively that you are convinced or convicted of joyriding is different and moncrief explains why because explains that the word convicted in a provision like this means the facts that you necessarily were found to have committed but so did what's good for the goose is good for the gander he can't meet his burden of proof either for the same convicted of auto theft and if the record is ambiguous on that front then he cannot have been necessarily he shows as a matter of law that he was not necessarily convicted of auto theft and notably the board in the decision a matter of e h from a couple of months ago which we attached to our end bank brief agrees with this reason it's an unpublished decision but it recognizes that after moncrief the question is not the one that the board conceived of in mr armand's this case which was did you prove was indivisible and i'm just this is a hypothetical that then it wouldn't be a crime it wouldn't be a say i am taking so therefore even though we would have the burden he would have the burden as a matter of law tenet five one would not be a c i am taste so he wouldn't have to do anything right that is correct but if it were to visit ball then why wouldn't he have the burden to show that he was convicted under the you know the one the one that the joyriding he would he would have the burden to show that he was not convicted of a crime involving that sorry i am tate and what moncrief is he has to prove that he was not necessarily convicted of theft he does not need to prove affirmatively he was convicted of joyriding this makes a difference because if a record is ambiguous the non citizen proves as a matter of law that he was not necessarily convicted of a crime involving moral turpitude this is however if this were divisible which is the hypothetical yes or no then it may be more difficult for him to meet is if it's if it is not divisible then at that point all he's got to show is that he could have been convicted of something which is the statute is broader than what he could have been convicted but if in fact it is divisible then at that point he could go to the modified categorical approach and then take the documents and determine what it was that he was convicted of correct judgment i do want to be clear that the discussion of the burden of proof only comes up if the court disagrees with me that this is an indivisible statute and that's what i was right yes and i apologize for not being around to give i thought as not being more direct earlier if you agree with us that the statute is indivisible you do not need to think about the burden of proof at all and we would encourage the court to take that view because we think that is the correct view even if the statute is divisible i thought your response was that the burden of proof doesn't matter here because the determination the court is called upon to make is purely legal one has nothing to do with any factual dispute that that's true there are two ways to think about a judge want for that is one of them that this is a legal question so no matter where the burden lies the burden may matter a lot for other things that he has to show like good moral character continuous physical presence for ten years extreme hardship to us citizen family members we think he can do all that the burden matters a lot there but for this legal question it it doesn't matter another way to look at it and this is the reasoning of the panel decisions and sound of all lou and rose is that the burden though it applies is satisfied as a matter of law because of the nature of the question on which he bears the burden of proof which has to do with what he was necessarily found to have been convicted of we overruled  says that the modified categorical approach preserves the category the categorical approaches basic method and so the question that is being asked under the modified categorical approach is exactly the same question as under the categorical approach namely what w as he necessarily convicted of so counsel is there if we disagree with you regarding whether moncrief overruled the president do you lose i do i i don't think we lose because the court is sitting in bank and so moncrief does not need to express lee or clearly overrule young in order for the court to reach what we think is the right answer under moncrief reasoning and how would you ask us to overrule you we do ask that your hon r and recognize that young was incorrect because because at in light of the recent the intervening development in young moncrief that shows that the board in this case and the  and bank opinion in young respectfully asked the wrong question they asked was the did the immigrant show that he had had to been convicted of the non generic offense moncrief shows that's not the right question the right question is did he show that he was not necessarily convicted of the predicate offense i'll point out that a young the opinion early in the opinion on page ninety three actually does articulate the question correctly it does say whether a guilt necessarily admitted elements of the generic offense and we think that's the right formulation but credibly what if then i'm sorry jeff what's wrong with putting a sense of his burden he's the one who's seeking relief here what's wrong with putting the conviction be a crime involving moral turpitude because the state will never be able to show given the way the statutes written that he was running a chop shop wearing at the time he was convicted well we certainly  first point because this is not a divisible statute but even if the court were to rule that it is that it is divisible we think that the that is going to the mall categorical approach the question has to be does the review record before the which statute was he convicted a question can you explain that i can do my best educated to the point what we rely on moncrief for and the way the board used it in matter of the decision we attach to our brief is it said that the question has been shifted from what young and what the b i you know monza thought it was it wasn't that you have to show affirmatively i was convicted of the non turpitude innes offense that goes further than the what the alien actually needs to prove the question is simply was the non citizen necessarily convicted of a crime involving moral turpitude and the answer will be the same because it is the same question in both the relief and the removal context which is why moncrief was able to say  character that the analysis is the same in both context again we do not think the court needs to reach this but if the court does we would respectfully submit the right answer is to recognise that moncrief has undermined the reasoning of young and that the end has affirmed the reasoning the questions that have been asked are all the questions that i want to enter so here we are in a two part analysis in this case your honor part one is was mister convicted of a divisible statute and we don't get the part two which is what ten if you look at it and it said in that brief petitioner state crime is broad in nature thereby requiring the use of the modified categorical analysis that was the law at the time mr this first brief was filed that's was the law at the time shepherd was decided all the way through until now the only question is whether this panel decision in rendon change that in any way this decision in this campaign did not change that in any way the only that's the only question is what is the impact of the rendon decision and was rendon correct that you have to parse state law which is what the supreme court said you shouldn't have to do in order to determine whether someone was convicted of something under state the statute to the elements and to be fair i'm having a tough time understanding if all the defendant is charged with and all the state has to prove is that the defendant took and drove someone else's vehicle without the owner's consent and when the defendant did so he intended to deprive the owner of possession or ownership of the vehicle for any period of time that could in any way be anything except what they shops and is not divisible and therefore this is over because it's overbroad so to answer to that question that said smith the first one is that is the pattern jury instruction that pattern does not fit every case under ten eight fifty one just just for a minute the pattern jury instruction i only read that because it was my simple idea of a way to if you will the best of my ability to summarize what i found in the case law as well i will i'm not trying to suggest that there's anything different then for any period of time in any case law that i have i will provide one case that proves the exception to that your honor well one case well no but this is an important it's a principle which is people versus lamas which was cited in the case which talks about communal property community property but that could be any property interest people cosign leases on cars all the time people use joint credit to buy cars all the time people put two names on titles in any of those offenses where someone then just drives away with the car never to be seen again or uses the chop shop example the only way you are going to be able to get a conviction is to prove a permanent taking and under this analysis we don't know because there are two people you don't know and the elements are there and you can't get to it then it seems to me at that point that it's overbroad and there's no way reason to go on well no your honor what we look at is is the statute phrased in that this junk there for a minute or temporary and then we look at the record of conviction to figure out what happened in this case was it a permanent or a temporary taking if mr almanza had proceeded to trial and the so i don't want to i don't want to worry about anybody else so i will create the hypothetical to make it easier on ourselves ok well what i'm saying is if the jury instruction was properly given because there was a model jury instruction well but we don't know to what fact pattern this case was applying to your honor that i thought after the scans we were really supposed to take into account the fact that here's the problem what i'm saying and what people versus lama says is that there are cases under ten eight fifty one where it is inappropriate to give a jury instruction that allows a temporary taking to be in the instruction if you do that you are committing reversible error and so if mr had one of those cases where you can't use the temporary jury instruction then we would know that it was a permanent taking that would help us to know but remember this is it coming up where the government has the burden to prove this is coming up in the case where mr l models are telling us that we would have to know whether mr mr monza was accused of taking something that might have arguably been community property or that he had some ownership interest with somebody else in this and he's that i want to and we would have to figure that out and hope to figure it out from the shepherd documents well it would but it would be in the shepherd dr of documents this could be something that could have been in the police transcript your honor where this would have been laid out the entirety of that case would have been laid out there was this there was this that you there was this charge mr on monday of this buttes it because he says he has a interest with mr mann is but the issue is he was convicted of a permanent taking but we don't know any of this because the plea transcript was not introduced to with the intent to steal that's a hard thing to prove but if can you someone in a car and they didn't have the owner's permission you don't have in this statute you don't have to prove that they intended to steal let they're in it they have it you know it's temporary or permanent you don't have it's an easy and so maybe it's not a c i m t well the good news your honor for the alien the ninety nine percent of the cases is they're going to win and they won't be removed because the conviction document will say permanent or temporary the plea agreement will say permanent or temporary the transcript will say permanent or temporary and the women and so you're right and so those people won't get removed but it is a different question when we're talking about eligibility for cancellation of removal an extraordinary benefit that only goes to four thousand people a year and we're talking about a population of about ordering i don't charge it you know say if it's someone you know the the auto thief yes i don't think they charge it per they like it that it's temporary or permanent because it's easier to prove and what i'm saying your honor is just because they charge it that way doesn't make it an invisible statute the statute is the visible under every way the supreme court has mentioned the visibility which is that it's phrased in that this junk this and can be charged in that manner and you have to charge apartment and taking in a case where a defense is that the individual had some sort of property interest in the car that allowed that person i don't i mean i know everything you're saying about what prosecutors have to do or must do under state law seems to me totally irrelevant in this case because the actual charging document charges either or yes your honor but in just a second so and we have a  where we know the defendant was not going to admit to any facts he was just pleading guilty to count one or whatever it was as charged well your honor there are three decisions where this court says that the west police doesn't and the analysis that we have to look at the p importantly the police transcript is not relevant to the answer of whether this is of the visible statute that's relevant to the question of whether who wins in the model when the modified categorical approach ok i'm assuming that the statute is divisible because it's framed but that's important because then hang on to something because it's phrased in the disjunctive right so i think i'm with you at that step not with yes your petition or but then what the modified categorical approach tells us to do is to look to the shepherd documents to figure out which version of the offense the defendant or the petition was convicted of right correct around here the defendant sorry the petitioner was convicted of the overbroad version of the offense because it was charged as either permanent or temporary your honor if everything your honor is saying is correct which i don't dispute any of it the point is that takes us to step two of this case which is who has the burden in a cancellation of removal case to this stablish that they w crime the petition was convicted of disc amps tells us we're just doing an elements to elements comparison right right between the version of the fence that he was convicted of and whatever the generic federal offense is right right and that is a straight legal determination that has nothing to do with the burden of proof and when we do that legal determination seems to me that here the government loses i think two things there's the statutory burden number one and there is sort of a systemic view that we have to look at five story burden the statute itself as the alien has the burden of proof to have relief from removal so the alien has to show the young decision but it's also a decision of five other circuits now that they were not convicted of a crime involving turpitude now here is what happens this isn't always going to come up this easily san diego the guys there there's a conviction go get it a lot of these convictions are in foreign countries they're in other places and we don't have these records and what congress is saying is if we're going to use one of these four thousand slots on somebody let's be sure they deserve it let's let's not make them one of these people who is actually a morally to turpitude and it's criminal your honor and so that's why the burden is being placed on the alien to us explain why we're all in agreement up to the point where we're now doing the elements to elements comparison right because you say that that's what we're supposed to do yes your honor and i say that he's all we know from the shepherd documents is that he's been convicted of overbroad version of the offense against iran and so when we compare the elements of that offense to the federal generic offense it's not a categorical match well so so what desk camps tells us is that in that situation we have to assume that the only thing the defendant necessarily admitted to was the least of the acts charged while they're there i think we there's just that step that's being skipped because why does camps and there is because the statute says enters it doesn't say  illegally or legally so the scamps and because that's not visible they are well between and there's legally and enters illegally so nothing you're going to show in those documents is going to be relevant to that because it just says enters here this statute the burden of coming forward with all of the documents to allow us to make that decision that's one thing first of all that wasn't done in this case and that's one of the reasons that his cancellation for removal was the night because we said because the board of immigration appeals said sorry that you can't withhold documents that might show that you convicted were of one of these disjunct the part that's first and that's critical do you disagree with judge that the charging documents the shepherd show he was  generic matter when we look at this effort document we read it as if it were invisible in restaurants as a case you disagree with i disagree with that and i may have not been understanding the question and i apologize as watford what i'm saying the simplest ways to enter this on a fact based matter is to say that the documents that mr armand well that i submitted in this case mr mounted and submit that argument do not distinguish whether the conviction in this case was under a temporary or to figure out whether this is one crime basically taking somebody without their permission right but whether it's included within the the element that you either permanently be prive the owner of the use of  that car or temporarily be private owner of the use but the bulk of california law the jury instructions the way these things are charged we know that the prosecutor never has to prove  duration of the death ration of the use of the car as an element of the offense i mean that's really the reality of it california prosecutors sometimes charge this in the conjunctive as they're told to do by certain cases most the time at least from my personal experience they leave the statutory language the same and that's reflected in the jury instructions the way that it was drafted at the time that mr monsour arena's was convicted of this offense so what you're doing is i think you're turning this on its head by saying well there's a disjunctive phrasing there there's the or and so therefore let's look at the separate documents as if that gives us the answer but i think the reality is that in the vast majority of cases that's not going to tell you because because it's never prove it that's that's the reality so you're using that to then say well the petitioner bears the burden he's got to prove that it's joyriding instead of car theft and then he loses right one of my missing here and so to me there's a real disconnect between that analysis with regard to time no eight five one and the reality of how east things are charged and when you look back at the statute seems to me this is one crime it's car theft with a minimum mens rea and that's required in order to be convicted of that your honor i would take everything you said and just add to it that the point here is simply that just because in the vast majority of cases this is not something that is charged in a the visible manner doesn't mean it's not sometimes charged in the visible manner because it has to be and that doesn't then change whether you can never look at the sheppard documents that the term and in this crime what happened sure but you searched the shepherd documents determined the question of divisibility and so when you look at the separate documents in this particular case you look at the practice of charging decisions in california  look at the jury instructions you look at make the case law whatever you look to rendon to search the case law or whether you're looking at the typical separate documents it all tells us that this is not an element of the offense and so that gets back to take hamps teaching of trying to determine whether it's one  now the standard that seems to be proposed is what happens in the vast majority of cases and that's even harder the point of this modified categorical analysis to make this a simple determination and so the point is if the statute  have that's been the law since two thousand and five mr edmunds i thought that was the law when he wrote his first brief you look at which of the phrases was charged if they were both charge the alien is going to win ninety nine percent of the time because the burden is going to be on the government so this is not some oppressive regime we're talking about it's just that in this issue of the cancellation of removal the burden happens to be on the alien and so that's why the alien loses in this case but in the vast majority of the cases you're going to look at this  all of the documents that are relative relevant to your case if you don't do that that's one way you can be tonight which was one of the ways mr on monday was denied but secondly your honor it wanted the person to show that there was no way they were morally turpitude is criminal that the statute it's also in the legislative history if i could go to that for one second it's in the legislative history where congress said do not house report one zero nine zero seven two that they have an alien applying for relieve or protection from removal bears the burden of satisfying the eligibility requirements for that relief or protection until they wanted to say those four thousand slots go to the  people with these convictions unless they can show they don't they're not disqualified in that situation and can he show that by saying well you know what the prosecutor took me to trial and didn't have to prove that it was joyriding versus car th and convicted of a disqualifying offense your honor but that's not what happened here congress placed the burden on the person who was to be removed who was seeking this extraordinary relief one of four thousand slots that can be given to four million people to show that they were not for someone who criminally committed a morally turpitude us act that is an important burden that it was a critical decision that congress made to put that burden on in order to make sure that those slots were allocated appropriately now getting back rendon for a second because i think yes i'm wondering why it is important to me what congress intended in the stands why that's important yeah well because on every statute where i have to make this analysis congress has statute or somebody imposes some criminal sentencing guidelines or somebody put something together in order to say what the federal government would do and then it's my my job to try to see of some state conviction really meet that particular standard every one of what congress did or the or the sentencing commission did as a lot of all concepts a lot of all things they were trying to do but my honest approach is not th seems to me that they said i compare elements regardless of all of that if i can make the elements compare all of that makes no difference but is this question applying to whether we use an elements versus means analysis or is that applying as to the burden of proof in as to what aspect of this case are you trying to say it's different if it's a burden of proof what i'm trying to say your honor is that the there's two questions in this case and there's the first question about what is a divisible statute and i don't know if you were referring to that or if you were referring to who has the burden of proving that they were and convicted on your argument only as to the burden well what your argument about connor's is in they did what they did i doesn't only have to do with the burden yeah i was answering to specific question about why it's sort of unfair i suppose to in a case that's in a quote poison rule against the alien in that situation  in your argument yes and i was saying that they are that's because that's what congress wanted but in addition to the extent what congress wanted was ambiguous then the board of immigration appeals in creates an opinion that says this is how you are to interpret it it's a published opinion and that opinion is entitled to different in that situation your honor so in that in that context i just wanted to just touch one on one point in rendon in terms of what i owe you one question if you're only modified categorical approach so we don't know what happened what would happen and that's why it's not relevant to put it in young let me explain there was a first part of the case that did involve the modify categorical approach they looked at the police agreement to take the ten parts of the statute and the plea agreement said it was possession with intent to distribute they got that from the plea agreement and they use the modify categorical approach but then that sliver of a section possession with intent to distribute could not be further  subdivided into for sale or for social distribution of marijuana and so for sale was a removeable offense for social distribution was not and because there wasn't this junk there of on that small part the court used only the categorical approach and said that that person moncrief was not categorically an aggravated felon to which we agree if you are not categorically an aggravated felon you when you don't get you you are not in eligible bill the problem in this case is we think the statute is divisible by because it's phrased in that this junk they have and so when it said the visible statute if the record of conviction is an eck what boys congress said that the burden is on the easier the analysis is still the same we look at the shepherd documents we see on there which part of the visible statute was the conviction and if we cannot figure out under which part of the statute was and the visible conviction in this one context alone cancellation of removal this extraordinary relief when it's an act of poise the burden of proof is on the alien and be alien loses in that case but if we were trying to remove the alien on the basis of a criminal conviction we documents and that should be the government because they have ever access why isn't bacharach well so the burden of production issue is a bit academic right now when we sit in this case because the burden of production issues mattered more earlier when the decision was made because back then the burden of proof was on the government and not on the start was the i was on the government and not on the alien so the point was if the government lost which is what used to be the law if the case was an echo of poison then that meant you had to do something to encourage the non citizen to provide the documents because if you didn't encourage it they could hold back the documents especially for foreign convictions and you would never know if this foreign conviction in norway was for of the portable offense or not so when the burden of proof is on the alien the issue of who has the burden of production is a little less important because they have the birds they have an incentive to provide every single document to show look my conviction was for joy writing it was not  for permanently taking the vehicle so the burden of production matters i'm not saying if they move part of the case but it matters a mentally of the court is going to now start thinking about moving to which we would highly discourage which i think congress would discourage moving the burd n back to the government of prove you still need this burden of production so as to not provide an incentive for someone to not give documents that are in their possession that would be relevant to the determination and i guess let me just take you back to the let me just put this to you let's say that the petitioner here had produced the plea colloquy and it just didn't show anything as we would expect yeah he didn't make any factual missions you just said i'm guilty as charged count one yes your honor in that scenario you would say that the petition loses because of young ok and i think that's totally wrong because it's not as i said it's not a factual determination at that point it's just a straight legal determination there's nothing to be in ecuador poise about but i guess if i if i take that position then his failure to colloquy you would agree should have no bearing well it matters your honor in this sense suppose you say it's a legal determination that's not true all the time in this sense that's easy to do in a california conviction if the person writes on their application i don't know what i was convicted on there but in norway i stole a car and they threw me in jail we don't know what's going on so the judge says do you mind providing me the papers that they gave you in norway and you say no disagree in the sense that there are three cases on this court which i've read earlier in the oral argument in this court's precedents that talk about that in a westerly you could still admit facts in a plea agreement that are relevant for the modify categor what's happening is what is a i thought a west plea was by just by definition the defendant was not making any factual admission you are you are you what it would be doing is it would simply what the purpose of the police transcript would be be playing the same role as if they had written all of this in a formal indictment and yes it's true that the defendant isn't necessarily saying yeah i did every one of these facts but they're still pleading guilty to the offense and the offense can only be determined if those facts are true in the sense that if if this had been a permanent taking which we'd have known because there was some sort of joint ownership here in this agreement we would have seen that and the only way that a guilty plea would have been proper would have been a permanent  taking in this case so it will still have had a relevant if this had been the kind of that that would have occurred here your honor and so that's why with it helps us to figure out what the conviction is because otherwise we wouldn't know i have thirty days i've gone over so has your  immigration but also for sentencing and so it's important to be mindful of the six and then the concern referenced in de camp that a sentence cannot be enhanced over statutory maximum except based on facts that have to be found by a jury beyond a reasonable doubt that's the only way we know in the words of a camp that there was a conviction in the deliberate and considered way the constitution requires that means for divisibility it's not enough to just look for the word or it's not enough to just look for phrasing that can be disjunctive because then you might have a disjunctive way of committing a the fact if i may that if the jury may have been instructed on extraneous facts that do not have legal relevance to the ultimate conviction because it is true that the mens rea is most definitely an element of the offense that must be proved in every single case but if if the charging document in the particular case only charges a single men's room and the jury is only instructed on that mens rea then we do know if they come back with a conviction that they found that that element to be satisfied but de camp is clear that that is not a step in the analysis that can be taken if the statute itself does not make the different the two different intense and elements that's all and i mean to make and if this court were to rule otherwise that would run into exactly the constitutional concerns that de camp was at pains to try to avoid by focusing on elements but the second the element the intent to take isn't that what does watford is asking about the ten million tend to take for it a temporary for a for a for any period  that it's an element but the jury doesn't have to find temporary or permanent it does however have to find that he had the intent to take it has to find the intent to take for any period of time but that is not turpitude innocent needs to be to take permanently before you get to church well but the problem is that we can't we can't determine what he intended to do without looking at something and it's compound and by the west police because he doesn't admit to anything so do you agree that our president says even with  police we can look at the docu the shepherd documents in order to establish the effect of the conviction we've we've bled into the burden of proof issue that the first issue is divisibility whether you even look to  try to find out whether the particular offense in a divisible statute that he was convicted of but in terms of trying to understand i understand your position and i'm i'm hung up on this burden of proof issue only because as counsel for the government points out this is an extraordinary remedy on which the alien has to convince the attorney general that he merits the really yes that's absolutely right your honor and there are many points that he will have to continue to remain and for in order for the agency to exercise its discretion in his favor he has the burden of showing ten years continuous presence he has the burden of showing an exceptional and extremely unusual hardship to u s citizen relatives and you have your show even beyond that under your theory of the case had he suffered a string of fifteen conviction for tenet fifty one because he let his life as a chop shop operator the attorney general could never exercise her discretion in denying him early on the contrary your honor that's not our position at all the the agency most certainly can and does consider that a criminal history in the end they were all russian the point is they have not the board has not exercise discretion in this case it found him ineligible on a legally erroneous this all we are asking for is not that this court direct entry of relief but remained to the board so that the board can determine whether he can meet his burden on the other factors both for eligibility and for an ultimate exercise of discretion i don't know of any doctrine that says the board can't consider that what we can they look at then maybe i'm misunderstanding your argument is understand your argument the board has to adjudicate this application as if no such conviction ever occur the board when exercising its discretion i believe can look at conduct the the disqualification and ground the statute that says that you're not eligible to even to apply even to have a hearing and putting your evidence as to why you are a meritorious case the kremas my brother puts it is what's focused on the taylor shepard issue as to whether you are convicted of a crime involving moral turpitude once you get over that you submit application the immigration judge has a full hearing and the witnesses will come in my client would testify and at that point he needs to convince him having the burden not only of continuous physical presence an extreme hardship but also that he merits the exercise of discretion in his favor and all of these things can and are so you can buy the ticket ask your client what did you do and the client would have to answer it in order to convince the attorney general to exercise her discretion in his favor i think is certainly that is and off already that the rules do give to immigration judges is to ask questions of a witness who is testifying and they certainly could ask a question like that but not at the disqualification phase which is where we are now we