whether the board of immigration appeals erred in upholding the immigration judge's decision that mr karr camo is an eligible for l p r cancellation of removal asylum and withholding of removal as an alien convicted of an aggravated felony the crux of this case turns on whether the board and the immigration appeals or the immigration judge properly applied the modify categorical approach to look beyond the statute of conviction after determining that the d c statute of conviction is divisible both the board and the immigration about an alternate argument the government makes that you don't really get to this determination about world vs modified admitted in the record in this proceeding not his criminal percy but in this proceeding that it was a cocaine offense the cocaine offense categorically qualify as an aggravated felony i don't understand why we get to any of these other issues well despite that conversation between counterpart counsel and the neither discussed the judicial admission if you can call it that and proceeded to be categorical approach and modify categorical approach analysis shows that the purpose for reopening of that argument the government was not addressed in your library no it wasn't your idea because it wasn't addressed by the immigration judge nor was it addressed by the board of immigration appeals and moreover the respondent cites no case law supporting that argument that judicial mission should preclude the the modified categorical approach a categorical approach except for a nine circuit case that's in a political to this situation because the petitioners admission in that case form requires the identification from the alien of the controlled substance because the issue there is that the explanation of why you're at unmissable must include the information that is not permissible to be looked at by the immigration judge in cases like these so you're out of the petition the petitioners position is that because the case went forward with the modify categor subsections if you're already it looks like that facially but the the both the immigration judge and the board conceded that the statute of conviction is not categor case is decided by the courts presiding over the jurisdiction in which the statute was and acted those being the d c courts and and this is one of the reasons why the respondents reliance on the board of immigration appeals decision is as faulty to an extent the the board agreed with the i j a that the statute is divisible stating that the identity involved the identity of the controlled substance involved is an alternative element under d c code but the board member who authored that opinion piecemeal several unrelated cases to prove that the statute or condition is in fact a visible when the conclusion from the line of cases to which he cites actually requires the opposite conclusion for example not look at it no that's the standard for questions of law and constitutional questions around which is what is present for the court today but the the board of immigration appeals cases actually indicate that the statute is not as a whole because in one of the cases on which it relies corgan versus the united states where the issue was whether the consecutive sentences that were issued were in error after the  the individual in that case pled guilty to possessing marijuana laced with p c p the court sentenced him to two consecutive sentences because he had two types of drugs now it's not because there's a difference between the two drugs under the d c code because the controlled substance is the the generic offense here and whether you possess it with the intent to distribute it manufacture etc those are the elements that need to be proved the subsequent subsections of the statute are actually only indicating for sentencing guidelines and so that's where it's a political here the court sentenced him to two consecutive sentences for the two type drugs but that's only because he violated the statute twice not because he had two separate drugs he could be possessing both of the same drugs essentially just like in another d c case where in an individual had two separate batches of marijuana and they hit him with two counts of a violation of this statute because he had t separate batches of the drugs so it doesn't matter what the controlled substance is the issue is whether there was a controlled substance and the court impermissibly looked beyond the statute of conviction to the board as well  is the only issue is whether there was a substance period and then whether the action taken by the the offender you know possessing it distributing it manufacturing it cetera yes i was i don't want to if it's if it's a modified categor so you know your horse can have trailed off i apologize there are no the crux of this case is determining whether the statute of conviction is divisible if it is divisible then the court would be permitted to look beyond the statute of conviction to the conduct of the petitioner in committing the offense and that would most likely reveal it would reveal that it was cocaine however the board it was not permitted to do so and the board relied upon irrelevant case law to an extent he wanted to reach that decision in that courtroom versus united states case the board member used that sentence at the end of the at the end of the paragraph but  even address the footnote which stated that although corben only attacks the consecutive sentences he would be entitled to have one count of his conviction vacated since he would have only committed one offense that's if you're looking to shepherd's documents available or which substance was possessed with intent to distribute the issue is just whether there was one and in that case having two different substances didn't matter it didn't matter that there was p c p and marijuana the issue  just that they were two different drugs and therefore he violated the statute twice  that the board member uses makes makes the foregoing even even odder because the quote that and actually supports a petition to argument even further the the court or the the board of immigration appeals  another case involving the two batches of drugs involved in one count language and that actually referred to two batches of the same drug and that drug was marijuana so it again just shows that the the act of possessing a controlled substance with the intent to distribute it is in itself a violation of the statute but it doesn't necessarily require that it be a certain controlled substance just that it is a controlled substance so the supreme court as we stated earlier in the comp states that you can only use the modified categorical approach if the statute is divisible in the sense that it lists multiple discrete offenses and new numerator alternatives defined by a single offense by reference to disjunctive sets of elements more than one combination of which would support a conviction as the d c cases cited before commit the crime in us versus walton for example the d c court of appeals held that the evidence is sustain the defendant's conviction for unlawful distribution of marijuana even though they marijuana he allegedly sold was not necessarily the same to intent to distribute cocaine is a felony punishable by the controlled substances act it was a lot of modified gotta go right well that i think what the point that our our brief makes is there are a lot of ways to handle this to look at it the means approach the elements approach that this court has adopted this statute is divisible and accordingly yes this the modified categorical its approach is available under the shepherd documents as your in some instances makes these alternative elements up so to speak it's really about punishment sure let me talk about the d c cases that i think there are just to lay out kind of a framework there are two reasons that we can point to his simplify why the modified categorical approach is a political one the d c case and the other is that the punishments vary the supreme court an apprentice a long time ago held that when you have varying degrees of punishment the facts required to establish elevated levels of punishments are in fact elements but to the point to your point and counsels point about the d c cases corben was indeed a case where someone was found  terms on that count on those two counts that i think the important case to contrast that with is a case called briscoe which we cited on page thirty one of our decision and that's a decision where someone was charged with two quantities of possessing marijuana at the same instance and the court in that case agreed with the defended that the court of appeals agreed with the defended that those two possession with intent to distribute marijuana offenses effectively murders because you were talking about the same substance and and because they merge i think that supports our view that the elements for that same substance would be similar there's another and in that case the court held that it was actually air for the trial court not to and to provide a special jury unanimity jury unanimity instruction with respect to either so i think all of those d cases that that were cited by the board that necessarily establish that the identity of the substance has to be an element i think the other thing that's that's critically important that this court remember is that just looking across the landscape of the other circuits that have dealt with this were this court to hold that this statute is not divisible it would be departing from every circuit that i know that has considered any type of state statutory scheduling scheme even the ninth circuit which has been characterized as agreeing with this court on the issue of jury unanimity as it relates to elements even the ninth circuit in the cor ok's that we cite on page twenty eight of our brief they point to the california health and safety code and say yes that the health and california health and safety code indeed sets out various  elements there's another case that we didn't cite in our brief called us versus abbott out of the third circuit it's that seven forty eight fed third one fifty four that addresses the pennsylvania drugs schedule and the rationale employed there again to find that they schedule listed elements rather than means was that the identity of the substance will increase the range of penalties and that gets me to the second point i was going to make under pretty any fact that increases a penalty must be found unanimously by a jury and indeed if we look at the d c controlled substance schedule we see different treatment under d c law cocaine is treated as a schedule two narcotic drug and is subject to a maximum term of thirty years by contrast marijuana is a schedule three substance it's schedule to a maximum of five years and only one hundred eighty days if the person is a first time offender or higher and the substance is the quantity the substance is a half or less so we see pretty dramatically different penalties schemes for a narcotic like cocaine and marijuana so i think all of those arguments strongly support the board's conclusion here that even under the elements the approach i do also want to i think it is a valid consideration at least to to consider whether the the judicial admission made at the outset of this case that cocaine was the substance involved  is continues to remain binding i think the important thing to remember with the present here case the ninth circuit case on which we most prominently rely for this per proposition is that judicial admissions of the sort under the regulatory scheme under the judicial admissions of this sort at a lot of know that was not relied upon by the but as we point out in our brief because this this matter could be resolved as that as an issue of law generally considerations which generally arise when we're talking about agency discretionary determination or agency is discretionary terminations this court could as a matter of law find that this judicial admission remains binding on petitioner and we don't even need to get to the question of whether this is a divisible effect of the motion to withdraw or the motion to reconsider which was filed and the motion to reconsider was based on new counsel was this new counsel joined the case and argued that moncrief should have been applied at no point was that admission to the factual allegation factual allegations that appears on page four zero eight of the record allegation five that cocaine was involved at no point was that ever withdrawn and i think it's also important when we look at the filing that precipitated that motion to reconsider by new counsel counsel actually attached his criminal records and his criminal record i think on page three seventy eight you see one of the attachments is his own his own criminal records which right there establish that cocaine was the offense involved so even at the time that counsel was moving the judge to reconsider while he may have been r moving to reconsider because under his view of moncrief the statute was not visible some of the arguments he's raising here he i don't i don't read that motion to reconsider as ever going back and saying  retract our our judicial admission that cocaine was the substance at issue when it granted the motion was granted but the motion was just to reconsider the motion was just a  decision to reconsider the conclusion that had really been rendered by the judge as to remove ability but it's i don't know that that that granted the motion to reconsider undermines all of the previous factual admissions certainly the judge didn't take replating in the case what was at issue it it seems that new council took contested a new one of the the aggravated felony charge but at no point did counsel go back and say oh by the way counsel allegation number five which we previously pled which you previously admitted we now deny that that but you didn't bring up this argument at all or to and typically we don't we don't like being the first ones to get questions that you could have taken to the lowing you can i get out of the whole thing bring it up to them and then you have this other argument either way because as a legal conclusion the judicial admission is there and it was never retracted and the simple matter the simple fact of the case is if cocaine is the substance involved then he is necessarily punishable as a felony as if as a felony under the controlled substances act at the very outset of proceedings he admitted that cocaine was the substance at issue he never retracted that admission i don't hear him ever he's never retracted that admission and in any subsequent briefing so just our position would be as a matter of law we don't even need to get to the issue of whether the statute is divisible because of following the same framework right i thought motions reconsiderations granted on the basis that maybe he didn't quite impart there was an interpretation consideration but that's where i think it's important to look at the motion to reconsider and factor and that the motion to reconsider even even included as an appendix is criminal records so it would be odd to me if the motion if he was now contesting a previously admitted allegation that the substance involved cocaine it would be odd to me but your honour's point is well taken i mean i think generally we defend cases on the rationale employed employed by the board but and that's in keeping with generally but it is true in our view that this case can be decided very quick and easily just as a legal matter based on that judicial admission just with some of my remaining time i want to touch on a few of the arguments that petition raised in his brief petitioner argued that the drug statute was overbroad relative to the controlled substance at risk because of the way it defines distribute as we point out in our brief distribute is actually the defined in the same exact way the only real point at which there is and over a breadth consideration here is that identified in moncrief and that is that proof identified the controlled substance act punishes certain amounts of marijuana as a misdemeanor but there is no other divisibility issue in the statute and finally i just want to make note petitioner raises some arguments in his brief about withholding of removal and for back to protection under the convention gets told torture as we point out in our brief he did not exhaust any argument with respect to withholding of removal because that decision by the immigration judge was based on a conclusion that his triumph was a particularly serious crime and that was as the him as the border an institution that was never raised so we would argue that point is exhausted as for reviewing the convention against torture considered determinations this court has been pretty consistent in holding that where someone was removed as for a criminal offense like this individual the court does not review for substantial evidence cat determinations and therefore he's limited to making legal and constitutional claims and in the absence of any constitutional legal claims we see no reason to disturb the cat determination my time is wrapping up so subject to the further court's further questions we would just submit on our brief and again asked that the court deny this petition for review  element of the offense the elements of the offense as pointed out throughout the proceedings by the petitioner are that the element the elements are manufacturing distributing or possession with intent to manufacture distribute a controlled substance these are the elements of the crime the subsections below below a one or one day are just merely considerations for sentencing because the the controlled substance while the reference the drug schedules do not do not make it any does not make it a crime or not a crime because of the and then be the identification and identification of the crime in criminal court then bears upon the sentencing but the the immigration courts are not permitted to look beyond the statute of conviction to discern or us the the ultimate holding there was that he sentences would remain but it that the footnote stated quite clearly that if he if the challenger was was trying to vacate the fact that he was sentenced to two counts because he had two different substances then that would be vacated because he would in fact only committed one single crime and that shows that in d c the courts construe this as one single crime the conviction for which does not matter what controlled substance was involved these are two drastically different controlled substances in marijuana versus p c p and the court made no distinction at that point and there's no reason for this honorable court to make such a distinction in this case either so for that reason and the reasons discussed earlier the decision is not or the statute of conviction is not  divisible addressing one point made by response counsel earlier there's a can distinguish you distinguish the the purpose of reconsideration versus reopening but when you move f reconsideration in immigration court and that motion is granted and the case is revisited that's a reopening of the case and it's vacated plus as as a judge when stated earlier the can the confession or the admission that it was cocaine was not of mr karr camos that was of prior counsel and one of the basis for reconsideration was that the the the case law put forth in moncrief meaning that the categorical approach should have been applied and the  park counsel didn't do so so because it wasn't mr carcano was admission and because it wasn't even an affirmative admission because it was just conceding to the allegation number five where the h s said it was  cocaine the the court should not require the petitioner to have made a affirmative retraction of such an admission if you would call it that the the issue comes down to again whether the agency preserve that argument before the board they did not therefore it can't be considered here and based on the foregoing your honors