remodel we appear before the court today because the petitioner was never afforded the opportunity to seek relief from removal in immigration proceedings due to the immigration court irania slee finding that he had been convicted of two aggravated applying the modified categorical approach to the shepherd documents in this case the conviction evidence presented was in big us as to which simple battery subsection the petitioner pled to o that that's what i said is wrong yes your honor and response to that i'm aware of the supreme court's recent decision and parade of the places that burden on the respondent i will point your honor to the record at pages no seventeen and eight that will direct your honor to a letter that was provided by the petitioner in this case in which the victim of the simple battery provided a letter to the immigration court stating that the yes your honor even though the accusation indicate the eighty subsection of simple battery as your honor previously noted the actual guilty plea does not provide a factual admission to the allegations in those accusations this is unlike this court's decision in gandy where the defendant in his guilty plea admitted to the factual allegations in the police report in this case mr tolman taste simply s that he was pleading guilty to simple battery it did not say as charged in the accusation and parade a it your honor the language itself and parade it indicates that the court can accept the this explicitly congress has expelled expressly authorized parties to introduce a much broader array of truth indicating for example of the riots of the records and to stations shall be taken as proof of our prior conviction it's our position your honor that this letter from the vets can be considered in meeting the petitioners burden to show that he was actually convicted under subsection a war and the offense of touching s action rather than the a to violent touching subsection i also want to highlight for your honor that it's clear from the record and the transcripts in this case that the reason that the immigration judge decided of those courts provided a clear reasoning for why they determined that there was a crime of balance in this case as we noted in the standard of review document in our brief when this court cannot determine the reasons for the decision below the decision must be reversed so it is our position on this crime of violence counseling me ask about that it's not really reversed its vacated and so regardless of what the b i he says already man somebody can come back here and we can review it is that we never remained true yes your honor there are questions of law present here but there the respondent in the proceedings below the petitioner in these proceedings had not met his burden to show that it was possible that someone convicted under the georgia simple battery statute could have been convicted of something that's not a crime of balance that in and of itself is also an era under john and because johnson requires that there be a balance act the georgia simple battle council i don't see and i don't know if he the determination of whether this was a crime of balance was similar to that had j's decision then doesn't that doesn't i mean it just isn't any defects in that i j decision that weren't repeated to be had they are not before us well your honor the b i made no mention of this victim's statement in determining whether or not the respond because it didn't consider the victim's letter all these years later yes your honor and you also understand that if we were doing this and typical modified modified categorical prote that would be improper to consider right i do not agree with that your honor based on parade we're so now we can go into an investigation of what actually happened in other words if it was ambiguous as to whether it was a problem or not the victim said sama he nearly pushed me through the wall i was in the hospital for three weeks it doesn't show up in these so called sheppard documents but that's the truth dave you're saying under breda we can consider i am your honor and that's the problem with courageous when the burden of proof is on the respondent he is going to have to present occasionally documents that are out of the original record go under your interpretation of the ordinary rules apply and to shepherd documents than the government but not the test they they apply to the well now your honor we have taken the position that the clarification order in this case should have been sufficient evidence to the court that the petitioner was actually senates to a term of straight probation we recognize this court's prior decisions and i gomes and bars amended but those are distinguishable from this case and i alla gomez there was no clarification order with language equivalent to the current case and garza mendez that case involved a battery which was clearly a crime of violence whereas in this case we have a simple battery with a divisible statute in which part of the statute is not categorically a crime of violence and part is i will ask the score in your review of the case to consider making comments on hernandez and how this court did not intend for that case to mean that every case under the georgia simple battery statute would categorically be a crime of balance i think the court should take this opportunity to instruct the immigration courts that it's important to analyze the divisibility of a statute and make clear findings on whether or not the respondent in immigration proceedings s here it's true that his judgement doesn't specify the subsections but his accusation does explicitly state that he caused the hearts and out language batches subsection eighty two dollars of the statute of conviction and here i accusation to determine which subsection was at issue and georgia has also helped repeatedly that whatever the whatever the prosecutor includes and the accusation is what they have to prove so there's case law saying that whatever charge an accusation has to be or the jury instructions have to match the language of the subsection that's in the accusation and therefore the conviction matches the language as well so here we think it's very clear that based on the accusations language and him pleading to the count and then the judgment explicitly referencing the counts that this court could then review that language in the acquisition and conclude that he was convicted under subsection a to and as if this notice prior to arguments and although he is arguing that the supreme court somehow reversed its sheppard case law precedent where under shepherd this court is restricted to a specific set of documents to determine what the individual is convicted under under freida the applicant had argued that there would be a record keeping issues that it's hard to access those documents and so in that context that same court said that that that's you know that wasn't a valid argument basically that there were other ways to prove what the conviction was under it doesn't mean that the applicant could submit the letter that he's now ernst councils arguing today could be considered for any sort of other facts that are outside the conviction record it's in practice when they defend to plead guilty he often pleads guilty to lesser included offenses that is different than the burden of proof that a prosecutor carries at trial so just because those allegations are contained in an accusation doesn't mean that's what a defendant is pleading guilty to also note for the poor to your argument is that from the records we should we should sign he may have pleaded guilty  lesser included of the vehicular homicide regardless your honor i'm not saying that in every case this court has to assume the lesser included what i'm saying is unlike gandee way or in that case it was clear that the factual allegations were admitted to in the guilty plea in this case the factual allegations that were admitted to are not clear they are ambiguous and are recommended and who carries the burden the responde cited that this court can't consider testimonial evidence in ascertaining which subsection in a divisible statute the defendant pled guilty to a question about the out why that you're talking about