good morning and may please the court my name is thomas from the law the attorney appearing on behalf of the petitioner in this matter i would like to reserve two minutes for a little time i mean i was going to begin by addressing the issue that the court ordered us to discuss  today and that's whether congress expressed a clear intent to make the amendment a two twelve c an adept retroactive towards the commission of the offenses cited in that and it's our position that they made no such clear expression of intent just by looking at the deficit itself they don't specify the temporal reach of those provisions so what does this without regard to the date of the commission mean that that wording is specifically directed to one of the sections that they cite in that statute specifically twelve fifty one eight two eight two if you look at that section it deals with multiple convictions and if you read that section it i believe it states that it doesn't matter when the commission of those convictions occurred as long as there's multiple convictions you're found deportable under that section so it's our position that that's not indicative of an intent to make the whole statute the entire statu retroactive so there therefore that we can still find petitioner eligible for to twelve see relief because his commission of the offense occurred prior to the not comment well our reaction to this question which may in my book  causes me to worry whether we even need to have the discussion isn't it true that your own client did not plead guilty until after ed purge already been passed that is correct he pled guilty so if he pled guilty after asked how are you going to get around our case law which proves pretty specific that if you plead guilty afterwards there is no way for you to take a part take advantage of to twelve c relief correct  we have alvarez brown haas which says right there the finding of an a finding an alien who pleaded guilty after the effective date of edgar is ineligible for two twelve c relief correct but i believe in those cases that have been relied on by the opposition here none of those individuals in those cases committed were convicted after  i just met the only reason we're talking about this at all is that it might have been that you were relying on to twelve c relieved when you might have pleaded but if in fact you pled to afterward she didn't have any there's no way you would have been able to rely correct but we we did address that issue in our brief that rely i realize you addressed it but i guess i'm still having trouble with it if you didn't have any real reason or ability to rely why  have to worry about it well we said i mean even if you had been charged before and there after planted after it but was passed we said under alvarez that wasn't enough i understand i understand your concern your honor and i'm bound by alvarez i understand if i may you may we did cite a supreme court case gentling the holder in our in our brief as well and starting to talk about cardenas can you say what you're going to say about that yes cardenas said that reliance on laws at the time whether it be at the time that you committed the offense of the time you pled guilty shouldn't be a determinative factor on whether the provisions  talk about what happens when the conduct the criminal conduct was before and exactly exactly what does the conduct have to do with their conduct is extremely important because it's the conduct of the commission of the offense that is penalize by it up but  just a minute if in fact we're not even having giving the person who was charged prior but pled thereafter any the individual to reside in the united states if the hold in the b i a or an agency is arbitrary capricious it's not binding and here i think we gave the example in our brief of two individuals that commit the exact same crime the exact same day and they're both placed in the criminal proceedings the one who is lucky enough to be in proceedings that moves more quickly and is able to plead to the crime before a dep a there are twelve c eligible while the other person who is unlucky and presumably has no control over that a holding that creates that arbitrary circumstance and that's the quintessential example of the arbitrary holding is what occurred to petition in this matter do you have anything that i'm going to change on you it seems to me that the conviction under cow helped them safety code eleven three fifty one has been determined to be a trafficking crime or an aggravated felony are you agreeing with that it's yes it's not  to one of our private primary arguments i believe the argument we've said is that it doesn't necessarily require a trafficking element within it but i guess we're going to go to where there eleven three fifty one is divisible it seems to me it is don't you think so it is yes and if i go here that your client was convicted the sale of cocaine salt as scheduled to drug then it seems to me that there's not much to be said about in that particular instance about t you know again the big issue for me is the two twelve c issue even if he was found convicted of an aggravated felony trafficking crime he would have been found eligible for to twelve see if the conviction occurred before the big issue to you is the to twelve so yes yes definitely all the fact that he was the conviction was expunged you agree that it still remains a conviction for immigration purposes what we submitted an argument on that saying that i realize you spend the argument that's why i'm putting it to you i guess i'm trying to figure out why ramirez castro doesn't end that right and it's one of our stronger arguments like knowledge that i think the arguments that little pond before was over ruled kind of left open the possibility of may not be lead to deport ability on a c n c i n t h r n r about the subject to torture seems to me i'm having a tough time why substantial evidence doesn't support to be i conclusion that your client was not subject to conviction and replacing it with having committed because they penalize just the commission and not the conviction and because petition in this matter committed the offense before he should be found on google for two twelve c they cite to a section in the dept of that does not require convictions specifically the controlled substance section has a subsection of drug addicts that's in a depo that particular subsection doesn't require a conviction what do we do with win vs coleman that case i did your honor it was in one of the cases i focused on again i don't again i don't think the commission of the offense was before it up in the conviction after like it is here and this is a pretty novel may please the court victor lawrence on behalf of the attorney general to start out the same place that my opponent did with respect to this particular statute we also agree that it was not congress's intent to with the language that is pointed out by the court to make this retroactive with respect to the commission of the crime rather and i don't say you agree with this thing that you need multiple offenses to be under this provision we do agree that with respect to step one or ten years of the time that that that you enter the country so what this clause is saying is without regard to the date of their commission so whether it's within five or ten years and ten years in the case of an l p r it whether two whether it's five or ten years you look at the fact you don't have to worry about the dates it's just that you've been convicted twice and then you wouldn't be eligible for twelve c relief that's not the issue that we have here of course because we go straight as we did in our brief we were not relying on a clear expressed by congress we're talking about what happened after afterwards and we're looking at the date of the conviction and the reason why we look at the data the conviction is simply by interpret in the language here where it says this subset section shall not apply to an alien who is deportable by reason of having committed any criminal offense etc and in order to be deportable it goes by the conviction date and judge smith you know in addition to where the individual pled guilty in may of one thousand nine hundred six one month after at but we also have alaska where the individual put pled guilty in a chair all about it please which is fine and he would does have his conviction after but i don't think any of those cases talk about whether the conduct was before is that right i agree with you that those two cases did not talk about whether to conduct  is that we're looking at the date of commit conviction excuse me so so it will be because there was this reliance thing but then we have we have cases since that talk about how reliance doesn't matter varda last talks about we don't worry about reliance anymore was definitely concerned about reliance and when the guilty plea happened but in the case law since we've moved away from this reliance idea as a necessary factor so i just don't know that st cyr talks about the argument they're making anymore it just is they're making a new  argument it i would agree that since he doesn't talk about the precise argument but i think from the context of the opinion when you when you read how the supreme court was focused on the date of conviction that's what matters here and what we're talking about is whether this new law attaches new legal consequences to transactions that have already passed and when and how does it not the transaction is he did this crime we would we respectfully disagree your honor the transaction is his time that he committed the crime with respect to immigration purposes yes he was caught with cocaine solved and at that time in september one thousand nine hundred five but no legal consequences attached to that no legal consequences attached until september of hundred sixty five months after at the pass a year and several months after the act that passed the senate it's only right that that timing is just arbitrary i mean what does that have to do with the the severity of the crime or whether it means he should stay in the country  when the proceedings continue to as he said just sort of random isn't it i don't think it's random at all your honor i mean first of all as i started to mention passed the senate in june of one thousand nine hundred five well before this individual committed the conduct so even if you see that he knew that this law was coming around the corner which was going to say that no two twelve c relief was going to available to an aggravated felony despite that several months later or there's idea that it's out of his control when he's going to plead guilty is just not realistic in the way criminal proceedings go because he could have pled guilty for from the very beginning when he was charged  so for that for those reasons it's the data conviction that matters sorry i mean i think the issue of when he pled guilty is actually a little bit of a red herring once we have case law that says that the reliance doesn't matter you don't need to show reliance so i think the question is really whether there's a new consequence of the conduct that had already committed well i mean the cot the conduct that we're talking about here though is his decision to plead guilty that's the legal consequences attached to his actions he said he hadn't pled guilty said he'd had a trial he's convicted it's still the conduct that caused that right i don't really understand i mean well what we're talking about we're talking about plea i'm sorry to interrupt  we're talking about please specifically please please and that's what i said at the conviction that matters so it doesn't really matter whether you platter was convicted but true but with respect to sincere for instance we're talking about how to see relates to convictions to today is that no legal consequences attached to his acts in september one thousand nine hundred five just just because he was caught at that time doesn't that doesn't give him the ability to apply for two twelve c relief when he's convicted five months after the law went into effect saying if you plead guilty at this time you are ineligible for a defense that you committed before you are ineligible for t twelve c relief and that that's what we have and i think are we talking about because he didn't become to portable exactly you know the portable only comes by the conviction right that's exactly as i understand it two twelve to twelve c relief is really for those who are pleading not for those who went to trial that is correct as well we can use but i guess i didn't understand that what so it doesn't matter whether you want to try why would that be maybe i distinction that you're making so to follow up on the point judge friedman's making if he went to a jury and was found not guilty guilty your argument would be different no i mean my argument was still be the same that no legal consequences attached until that guilty plea was in place until the conviction by a jury you're saying that's the sure yes so the bottom line is that when he committed these acts no legal consequences attached back back in september of ninety ninety five but there were laws about what legal consequences could attach to that then later changed but in september of  six he could have decided not to plead guilty at that point but he did knowing full well that the law was in place that said if you are convicted at this time for deportable by reason of having committed any of those commo fences your ineligible for to twelve c relief and that's what that's what the government's position is in this case your honor thank you thank you i think we use all your time you have anything you really want to tell us that you haven't already told us if you do i'll give you another thirty seconds ok i don't want you to feel like we didn't give you your chance so i really appreciate i think just quickly the issue of the new consequence i think if we hold that it disqualifies people from to simply by committing a crime you have to hold that there was a new consequence created to the commission of those offenses because at the time he committed the offense he was over to t see once a deposition acted because they penalize just the commission not the conviction that puts a new consequence on the commission of the crime and that fulfills the second step in seer and that's why i should be found out thank you we understand your argument case one five seven two seven four seven news submitted