leave this case turns on remove ability in the first instance my client was charged as removable only on one basis that he had been convicted of the aggravated felony of trafficking in a controlled substance but the state statute of conviction california health and safety code section eleven three fifty two way is overbroad is the circuit has repeatedly recognized and under the modified categorical approach the record of conviction does not  blish at all much less on the quickly and clearly what facts my client admitted in his plea deal with the state of california the record only shows the fact of conviction for some violation of the statute but it does not show and cannot show the specific facts necessary to show that the nature of the violation fits within the narrower conduct prescribed by the two documents that comprise the record of conviction the ninth circuit has already passed upon both and said they are not sufficient to establish that the crime qualifies or show the nature of the crime fits within the narrower context you've got i have seen opinions where the abstract was was good for showing the fact of conviction of a statute and also an opinion where it was useful for identifying the sentence imposed have not seen any opinion where the nature of the offense or the abstract has been used to narrow the nature of the offense given a charge of an overbroad statute and then you have the charging instrument here which is for practical purposes almost identical to the charging instrument and almost on to sarah so the government's attempts to distinguish the record of conviction here from navi that marcos which is the controlling authority is unavailing because one  argument that the complaints only pleaded in the conjunctive is also unavailing and putting that aside even if you were looking at the complaint and it was purely in the conjunctive that would not be enough because not only that marcus is pretty clear that the abstract is really not reliable to identify the nature of the offense so what we have here is the fact that mr doesn't raise removal was not lawful it's unnecessary for the court to reach the other issues in this case but there are other issues so i'll briefly touch upon them the government contends that our challenges to the particularly serious crime determination which precluded withholding the erroneous interpretation and application of a regulation is an error of law and that includes the failure to consider all evidence relevant to the possibility of future torture as defined by the court of federal regulations there is no exhaustion problem here because the issues that we raise have been exhausted because the i j a and the v i i considered both thoroughly and so an issue was exhausted when the b i's considered the issue and that's because the policy behind exhaustion is giving the administrative agency a chance to consider issues thoroughly and correct its own errors is served when the v i i actually addresses the issue in addition there is an exception good morning good morning cynthia parsons for the attorney general first regarding the exhaustion argument this court does not have jurisdiction over these issues regarding both the aggravated felony and the particular serious crime additional argument regarding particularly serious crime and they make a number of very specific arguments in their brief none of which were raised before the day or the immigration judge and contrary to petitioners argument  this brief and that's because they weren't before it but beyond that i'm sorry i thought you're going to ask a question beyond that looking specifically at the aggravated felony and the timing of the very sanchez and one two days before we very sanchez was decided the petitioner filed a motion to reconsider that motion was pending until september of two thousand and one when this court denied the motion to reconsider and decision and it occurred while the panel was still considering the motion to reconsider therefore and the prohibition is not just on what was decided but on what could have been decided if you look at the statutory it includes issues that could have been decided that issue clearly could have been raised by the petitioner with a twenty eight day letter or a further briefing faxed to the court or on the  mandate months after rivera sanchez was decided therefore the government would argue that this court is barred from determining whether or not the immigration judge in the b i a properly applied the modif that did willfully unlawfully do this or this or this or attempt to do that or attempt to do that and the charge the actual indictment not the dog marcos that's exactly how it was charged they just simply took  of language plopped it into the the indictment and he was charged with doing this or that or some other thing he was convicted of that charge he pled guilty to that charge and in the abstract a judgment it had the typical stale slash rather than a solicitation or offer or giving it away of course ever that's correct that's correct however if you look at what was charged in the indictment in this case and what he actually pled to we have two completely sale and transport and you and offer and exactly getting which meant he excuse me which meant he pled guilty to all of them because it was charged and and and and yes so whether or not an attempt or an offer was a crime and an aggravated felony the sale was and he was convicted of that because he was charged with that in addition to the other charges and consequently when he pled guilty to that charge as it was drafted he was pleading guilty to doing each and every one of those things as opposed to doing maybe this and they did that and or maybe this it was all of them indictment rather they changed the language and changed the orders to enhance that change and his plea to that count and so he has pled to every single thing that is charged in that that indictment and that includes sale of rock cocaine which clearly is a trafficking offense and clearly an aggravated felony in addition to that we also have the receipt of us acception under lopez  this conviction document and the indictment that and the charge that he pled to includes two priors and under california penal code they don't charge those priors unless he is actually convicted of them and if you look at the administrators record ten seventy you will see that the charge includes not only that but also includes some enhancement for the priors and consequently that record and conviction shows that he not only is convicted of this but he also because that's included in count one of this case that he also was admitting he was convicted of those other two possessions and in addition to that the record before the i included the record of conviction including the indictment and the abstract for the one nine hundred ninety one conviction therefore under the reservists exception under lopez footnote six that is a trafficking conviction and therefore he is an way you look at it the record of conviction was more than sufficient to determine that petitioner was convicted of an aggravated felony and because he was convicted of an aggravated felony the criminal alien for example this court does not have jurisdiction now over any of the discretionary issues or any issue that is not an issue of law or a colorable constitutional issue because  an aggravated felony and therefore the only thing this court can consider are colorable constitutional issues or questions of law which were not previously decided or could have been decided and which have been just exhausted that virtually eliminates the entire petition because he didn't exhaust any of the specific claims that he now makes in his brief regarding particularly serious crime and this court is precluded from reviewing the aggravated felony issue because he could have decided that in a prior judicial proceeding plus the fact that as we just discussed it is an aggravated felony i do notice that i am out of time so unless the court has for the questions thank you for your your it would be helpful to me to hear your response to two points that this person is arguing the first being the pendency of the p f are after rivera sanchez and the second being the difference t from reviewing an order where a previous court has already determined the validity of the order and this court did not determine the validity of the order during that first petition for review it prior to the change in law to rivera sanchez my client did file a motion for reconsideration but he filed that motion for reconsideration two days prior to rivera sanchez so at the time my client filed his motion for reconsideration we very sanchez hadn't been filed yet what about the time which ruled this person says it was several months later it was ruled on june seventh two thousand and one but there was a pretty clear mandate from this court to my client that the docket is closed and it's not going to consider any further type of filing and the language was no motions for reconsideration rehearing courts part of germination can't reverse it well it seems a rather unworkable rule because an opinion gets filed when is the detained pro se alien going to have access to this opinion so you know in theory that might sound like a good argument but how is that really going to work when you have somebody that's that's the taint he's not a lawyer i just don't see how he's going within a three month period where a lot of that would say you know this cuts off his rights to raise a real just want to add one thing about the statute statute because i don't think the statute even get there if the statute the twelve fifty two d two because that's talks about the validity of the removal order and i do that is sort of a clean preclusion thing where the whole removal itself has been determined and that's not what happened so that doctrine and that statute do not apply the statute does have an exception for grounds that could have been presented at the time we've already talked about that a little bit but that's the same reason that issue preclusion and law of the case  complaint is not as clear as the government contends it is in this complaint and taylor's modified categorical approach is a rigorous standard that documents have to establish unequivocally and clearly what facts my client admitted in his plea deal with the government and these documents simply do that do not do that so want to find on those i want to point out the fact that the appropriate relief here because my client hasn't