aggravated felony because its knowledge element is overbroad so at this point in the appeal the main dispute between the parties is whether mr lay there are this conviction under section eleven three seventy eight of the california health and safety code constitutes quote illicit trafficking and a controlled substance as defined in section eight zero two of title twenty one so it's what the parties are calling route one of the  specific question is whether that route one incorporates any kind of generic mens rea and the government's first response is no essentially all route one requires is the trafficking element so what do we what do we do as you well breath so as far as we're aware of no court in the ninth circuit has considered whether the knowledge element of section eleven three seventy or for that matter any other california why should we assume that california thinks the mens rea requires a defendant to understand which set of laws makes the controlled substance a controlled substance i mean why should we think california thinks it's enough that the person  understand they have something that's illegal either under a state or federal law the reason is because california case law has provided for that so we decided three california decisions in our opening three three people vs geringer but in all of those it doesn't matter if you know which controlled substance you have but i didn't see anything that said you specifically need to address this question i mean right now in the world we have this question of what's illegal under california law and what the legal under federal law but in general people don't understand these differences don't understand that there are federal courts and state courts i mean in general people just know the they're illegal or not and the whole concern about whether someone has a reagan over says marijuana is taken care of i think if you just know generally that it's something illegal and it doesn't really matter if you understand it state or federal so i think that the way california has defined you know i'm in so i'm looking at for example the jury instruction it says the defendants knew of the substance nature of character as a controlled substance it doesn't say specifically right under california law but i think that that is sort of presume because something is controlled controlled doesn't have any independent meaning untethered from the source of law that controls it and so i think california only has jurisdiction to control to render offenses that itself controls as a criminal offense but it isn't the point of the mens rea requirement to make sure that someone isn't captured when really they didn't think they were doing anything wrong but doesn't someone know they're doing something wrong if they're violating either state or federal law not in california i think california and the surrounding california can use that you can point to that says this is a strict liability offense that's what you seem to be claiming it is i don't i don't see saying that the you can be libel under caliph wonder the section and criminally libel if you have if you argue when does the common law amends for a difference in that record argument is that under california law in order for someone to have the requisite mens rea i need to know the substance on the california list of controlled substances so they don't need to necessarily know the specific name of the drug or the narcotic character of the drug they just has a know that whatever is in their physician is on the list of california controlled substances and that's different from the requirement under the federal definition which the supreme court in held in mcfadden requires the generic for the federal offense and you have to know the substance is on the federal list of controlled substances and this court has repeatedly held that the california list of controlled substances is broader than the federalist and because the knowledge element is tied to the broader list it necessarily incorporates that broader list that makes the knowledge element necessarily overbroad as well that's essentially our argument for why this conviction is not an aggravated felony let's let's assume argue w broadness is is is a bit of a problem so that you find out where the statute is divisible and i don't think as to the element of the drug type you're arguing that eleven three seventy eight is is not divisible that you are you we are not one i think th documentation that was presented before the court in this case don't we have clear and convincing evidence that this was for federal purposes or graphic an offense you know your honor and i think there modify i mean there's two sources of overbright there's the drug type element which you would go to the modified categorical approach but in order to first to do that you have to disagree that the knowledge element is overbroad an individual an argument is that the knowledge element is overbroad but it's also in divisible and therefore it's not subject to the modified categorical approach so and your best case for that is what that the knowledge element is indivisible it would be there would be three cases that we cited people versus geringer people versus guy in people versus ramiro in those cases they were all examples of a defendant believing he possessed one type of california controlled substance but it turned out that he or she in fact possessed a different california controlled substance and the california court said that there was still sufficient evidence that there was still knowledge of the controlled nature of the substance under california law and adjourn instruction doesn't require the jury to unanimously agree on what specific substance the defendant belie he possessed and so that makes the knowledge element in divisible i'd like to briefly just touch on the remaining points of the appeal so this is a thirteen twenty six d motion and we believe that the other that and i would point to the court's recent decision just two weeks or three weeks ago from valdivia flores which held that in an administrative proceeding of this nature there's essentially no opportunity for judicial review because the immigrant isn't given an opportunity to challenge the fact that  in this case the and there is no exhaustion by need very nature of the administrative removal proceeding there's no ability to exhaust and when you're from the government morning that the poor mark rey before the united states you know has the district court in this case correctly denied the motion to dismiss because california health and safety code eleven three seventy eight is an aggravated felony  knowledge no court has adopted the theory that the defense is putting forth in front of his court today and would argue today that there is no sound reason to do so as originally allege the defense claim that this statute  overbroad because it doesn't require the defendant to know that the substance that he or she is trafficking is on the federal schedules all that would mean even if you assume that because california law doesn't parse parse it to that level in the supreme court in lopez versus insults has made clear that there are two separate routes for proving categorical satisfaction of this definition our position is that illicit trafficking when one looks at eleven o one  forty three and b it starts out with the generic phrase alyssa trip trafficking in a controlled substance comet including any home punishable under federal law so by definition just as a rule construction the generic definition should include more than just that which would be punishable is a short while fence otherwise the only thing convictions that would ever satisfy this definition would be title twenty one convictions and we know that would be an absurd result because elsewhere in title eight u s c eleven zero one a forty three congress was clear that they wanted to incorporate both state and federal offenses that said there is no reason to import the kind of requirement that california would have to also prove that somebody knew the drug was on the federal schedules as judge friedman pointed out we see a case people  the knowledge the california requires and this is a quote from page six seventy one of an opinion knowledge of the fact of possession and of the illegal character of the substance and quote california doesn't go any farther to say you also have to know which particular schedule little known federal not only that we would posit when this court attempts to construct a generic definition it should at least be tethered to majority state usage this court held as much in garcia's santa and they cited taylor for that proposition today as we stand here i've done the best searches i can do i don't know of a single state in the union that tethers the knowledge requirement for their drug trafficking offenses specifically limits them to the federal schedules all that they seem to do the majority is require that the defendant know that it's illegal this is not a strict liability offense in california in the end i don't believe that can be possible you know what i think when i first came out as this case and i so well they're basically the defense assuming a paradigm it has to match a perfectly with federal law it seemed to me that say well even assuming that that takes it out of one route the fact that the statutory language says alysa trafficking comma including this other route means that that can't be exhaustive but obviously this court is looking at this issue this issue is starting to come up with some frequency obviously the court dedicated  issue hasn't been presented before but the other reality is that if this court were to adopt this argument there would be no way not only for a california drug crime to satisfy the definition that they put it on reason the high levels we w other state could satisfy either and how would that promote policies of fairness uniformity even in immigration law that uniform uniformity is promoted by the fact that even under route one it still has to be a federally controlled drug so it's not as if as you pointed out earlier congress clearly intended to broaden not narrow the scope of what state offenses could be included under under this provision absolutely consider your honor are you still arguing that he had no prejudice here yes because basically as my point there's the three requirements thirteen twenty six d we're assuming that he did they don't have to worry about exhaustion of remedies in the definition of review but to me the prejudice is part and parcel of that fundamental unfairness and they have the burden to prove both the due process violation and prejudice it least it's kind of all or nothing  that maybe i'm misunderstanding but it seems like we do have to figure out whether there is an aggravated felony here or not and i thought in your brief you were maybe arguing in part that we didn't even have to figure that he was removable anyway and doesn't matter and that seems like a real stretch so i'm wondering if you're still making that argument please join or i put that in as an alternative argument at the very end that was simply based on the language an act here real state that particular defendant i'm happy to withdraw that argument because we want this issue decided  fact i'm glad that the court can swim brought these two arguments together there are other cases waiting in the wing so we this is a decision that needs to be decided and then this there are any further questions asked feel or question will you still have an opportunity i gather and the