state court vacated his prior conviction a new information was issued and he pled to account which is not an aggravated felony under a recognized judicial court this court has stated that a conviction overturned on the merits may not be used as the basis of a deportation order the decision to be i relied upon primarily in looking at the first motion reopen and there were two motions to reopen a first one filed by prior counsel which was denied on a procedural issue because the attorney did not  that in fact the respondent still was convicted of an aggravated felony the sixth circuit court of appeals on july seventeenth two thousand and six reversed and remanded in pickering in a allas and interestingly found that the burden of proof is on the government not on the alien not on it was that in the context of a motion to reopen no it was not i believe it was not nonetheless what the sixth circuit said is the burden of proof is on the government to prove that a conviction vacated solely for we believe for immigration reasons quoting from that decision the sixth circuit agreed with determinations of the b i the seventh circuit and the tenth circuit that the government bears the burden of proving that a vacated conviction remains valid for immigration purposes they went on to say accordingly that mr pickering is reportable only if the government can show with clear convincing and unequivocal evidence that to keep that the conviction was vacated solely for immigration reasons it concluded that in order to meet its burden the government mu prove with clear unequivocal and convincing evidence that the petitioners conviction was squashed solely for rehabilitative reasons for reasons related to his immigration status that is to avoid adverse immigration consequences and this was a motion to reopen so what was it mr the third circuit in cruise versus the attorney general looked at that and what the proper standard is in a case again where a motion to reopen was submitted after the fact and what it found is that the b i had a policy of reopening sue a sponsor a any time there was a change in a conviction and they found that there has been a history of the b i a finding an exceptional situation and that's in quotations any time that a conviction has been before it or what did he submit to be in the first motion result in my prior counsel he submitted on certified copies of the records showing that the california state court had vacated the conviction under eleven three seventy nine and that he had pled none proton to eleven three seventy eight which is divisible statute under california law just it was just a copy of the superior court order yes it did not contain the minute order of the events on december seventeenth two thousand and three before the supreme court is that in connection with the first motion to reopen with the second most interview the second motion reopened that was my motion your honor and that's what's on appeal before the court the minutes of that of of that of those proceedings before the superior court tell us if anything about they tell a reason for his motion to vacate it silent your honor and it doesn't say and we don't know when we don't we don't know why we don't know why and i think what the sixth circuit said in pickering it's the government's burden of proof to show that that conviction has been vacated solely for immigration purposes purposes or rehabilitative purposes  looked at the conviction in incorrectly looked at the charging document which in the amended conviction to respond it did not lead to and look to elements in that information that are not relevant to mr na at the information from the first time that mr nath was convicted and relied upon that in finding out withstanding the amendment that he still was convicted of aggravated felony that he would be a hassle alternative  the immigration judge's decision was made upon a conviction which no longer stands also on the basis of that conviction the respond it was made in eligible for cancellation removed removed for permanent residence he was made  did go forward with is that torture convention claim and that was denied by the immigration judge but these four of three other forms of relief were not made available to the respondent based upon and iranis finding out today the respondent was convicted of an aggravated felony to respond it is in the country the order has not been executed he's been released and we believe that these issues should be corrected by the ninth circuit that this matter should be remanded back to the immigration judge to through the b h an immigration judge so the respondent can make application for cancellation removal asylum and withholding and you have a new duty cation whether or not respondent has been convicted of an aggravated felony or not so he can see the balance of your time reconsider the petition has not even argued that the motion to reconsider was timely and if not the guy is decision to deny an untimely motion to reopen a matter of discretion and act the limitations on this court's jurisdiction it is limited to legal and constitutional issues when dealing with criminal aliens petitioner is a criminal alien and putting aside the fact whether or not we're going to consider that a negative felony which i will actually devote most of my argument to that nevertheless it's a simple matter of did the b i abuse its discretion in denying an untimely motion to reopen the fact is no they didn't abuse her discretion but in any event court would not have jurisdiction to review that discretionary determination because it's not a legal or constitutional issue however looking solely at the characterization of the petitioners conviction first we're dealing with two different conviction i mean the basis for it is sort of one alternative is of places in that decision know how or that's not the latest decision of the board of immigration appeals the latest decision of the board of immigration p l c is an oxe to levels two thousand and four decision it appears at page two of the record in which they deny the motion to reconsider as untimely that is the most most recent decision of the board of immigration appeals and we would argue that is the one that is at issue here under the real i d act justifiably so only because of the uncertified documents but they didn't they went ahead and they looked at the merits and with all due respect again to judge merit in the sixth circuit award i will i frequently don't agree with the s evidence of why it was amended so basically what the petitioner is asking this court to do is to disregard a conviction that on all fours is if false under the definition of a conviction und c eleven zero one hundred forty eight it's a an adjudication of guilt with punishment imposed and just ignore it regardless of what the reason is you just are supposed to take a leap of faith that it was in fact vacated for one of the various reasons that this court and the b i have recognized as a valid basis for ignoring a conviction there simply is nothing before you to do that the petitioner did not meet his burden of showing that would apply he simply did not meet that burden and this court simply cannot disregard a conviction that petitioners own earlier counsel conceded was a particularly serious crime simply because they ask you to there has to be some reason given in fact the order of the state court of california and amending the conviction so yes as done in open court where the transcript  simply put there is nothing before this court to show that that conviction is no longer valid for immigration purposes and under the law this circuit the government argues that this court cannot just regard it unless  petitioner has shown that it does fall in one of those categories that would make it no longer a conviction he has me ask you this the very last  they did rely on the fact that their final reason was relying on the fact that the second conviction would be how they did analyze the first conviction also so i believe based on the opinion of the way this court could look at it either way has argued the generic solicitation does not equate to a drug trafficking crime the first problem with that argument in the brief is that his client was not petitioner was never convicted of solicitation california does have a specific solicitation statute and it appears that california penal code six fifty three after that's f without kranz it has both a generic component and one specific to drugs at six fifty three d and in fact six fifty three f d specifically references california penal code one one three seven nine which is the section under which the amended conviction was based if you look at the record at pages eighteen in one thousand and forty nine which is the amended judgment conviction court that it's not an aggravated felony and it simply it simply doesn't apply because he wasn't convicted of solicitation however even the rest of the argument fails because if you look at eleven three seventy nine under which he was convicted and you apply even the modified categorical approach assuming that one would take it to be an overly broad statute requiring the categorical approach you're looking at judicially recognized information and that you'd usually recognizable information including the information that is in the record that is the the information the actual court pleading called information in the record shows that he was involved in a broad based conspiracy involving fire of firearms to protect drug transports and involving a fairly significant amount of drugs it clearly shows a trafficking crime and therefore is clearly an aggravated felony counsel during his argument alluded to a new information being issued however as far as i am i am aware there's only one information in the record and was only one information in the record before the b ira and that was the original information on which he was convicted under the first crime i do not believe the second information that using that that word in quotes that particular document was ever submitted the minutes were submitted but not the information and so the judicially recognizable information available to the b i am to this court is here which information that shows a considerable drug conspiracy and this court and others and in fact the definition of drug trafficking crime includes a conspiracy therefore even if you were to accept that the first conviction was in fact vacated for reason that would negate a conviction for immigration purposes the second conviction is a conviction under the statute and it's an aggravated felony i see that i am well you really can't i mean i could make that determination without seeing the actual information to look at and the court either did not issue i mean the prosecuting authorities either did not issue another information or there was no other information don the information under which the entire scheme was conducted still would be judicially recognizable information and still would clearly show that it's a trend drug trafficking crime could if you look at it you know there's really no question i mean the amount of drugs the use  firearms the protective transport ok they will let you go we've given you ample time here i'll let you have it a minute everybo further ordered that the information in the instant matter be amended to allege and felony count the information that the government wants to rely on so heartily in trying to add all this other factual information regarding firearms an amount of drugs really does not come into play there was an amendment of the information the information with the b i a relied upon in finding that this was a drug trafficking offense could not be relied upon the information that they had before them  information that the responded pled guilty to this is a divisible statute that punishes transportation importing into the states jail furnishing administers or giving away or offers to transport  imports sell french minister give away it's clearly divisible statute it's akin to section eleven three sixty of the california penal code which has been found to be divisible there's no leap of faith here the sixth circuit has vacated pickering every verst it it and vacated the video potations order i don't think pickering is entitled to any deference and this court is free to determine who has the burden of proof in a matter such as this and i think that burden of proof is clearly on the government