felony of illicit trafficking and therefore must be removed and cannot seek consolation of removal for two reasons and i think they're both independent reasons i think the petition should be granted first the  decision misapplied the modified categorical approach and second of all even under the chevron framework the board of immigration appeals the definition of illicit trafficking is incorrect and as to the modified categorical approach just as some background mr gordon was charged and convicted of violating florida statute section eight ninety three thirteen one day in a court in a case called spat over says united states attorney general this court has held that that statute essentially has several alternative crimes some of which have an element that requires consideration the exchange of consideration and some which do not why that is important is that by the b i own interpretation of the term illicit trafficking in the immigration and nationality act consideration is an element for illicit trafficking and so that means under the florida statute some of these crimes are illicit trafficking o defendant was convicted of and the b i which is right did that apply the modified categorical approach and looked soley on mr gordon's information the problem is that the information is ambiguous essentially three but the state prosecutor pleaded that or charged mr gordon of the cell or delivery of controlled substance for head in the words for consideration yeah and out of the way that's not part of the if you have a purchase are sales obviously for consideration exactly and this court and spouse said that sale just implicitly does include consideration but there's a floor at thirty c opinion state versus menno and there the florida third district court of appeals said that deliveries different does not require consideration it's sort of a broader crime you can deliver a controlled substance under florida statute section eight three thirteen one a day without getting a consideration and so the information by its own sort of facial language shows that he was there mr gordon was charged and convicted of either the cell or delivery and the supreme court in cases like has and really versus lynch has said that when you apply t approach and there's sort of this ambiguity about which crime of the alternative crime somebody is convicted of you should pursue him that it's the least criminalized acts and so applying the categorical approach if the be i did it properly it should have concluded that he was convicted of delivery they didn't do that instead what they did is like well it also mentions monsour consideration this is not really delivery it's a cell and respectfully we think that's that's a misapplication the modified petition well so what would the remedy be then to vacate a remand to the board of immigration appeals because it could decide that mr gordon has recently been convicted of two crimes involving moral turpitude and that could be a basis for discretionary denying him discretionary relief i agree with that your honor but the government in a response brief didn't ask for any amount it didn't reversed in what happens if it's reversed then the basis of the removal and the refusal to cancel removal was purely on this conviction and so if it's reversed obvious or grant to petition trafficking which appears in the immigration nationality act but is never actually defined in that statute the board of immigration appeals in a case call in l g h has essentially the final is a trafficking in a way that is in co followed the florida rule and it said wall we don't believe that knowledge of the illicit nature of the substance is actually an element to the generic definition of illicit trafficking or should we give chevron  when you have a generic crime like like illicit trafficking in the eye and say the way to discover to the finish and of that term is to actually look at what states codify that crime asked and so there's two cases one that any event by issuing a definition that is contrary to this methodology it's really an on reasonable interpretation that even under chevron deference fails and so both bar on the terms circuit and in the ninth circuit  and the circuit courts have has actually said look at the eyes interpretation doesn't follow generic crime which the supreme court said this is the way to do it and in moncrief i believe the supreme court specifically noted that illicit trafficking in the a is a generic crime and so the b i's attempt to ignore the majority states view we believe is is fatal to their interpretation and finally i just want to talk a little bit about the response of the government filed the government seems to be relying almost exclusively in this court's opinion spot overseas u s attorney general and the government seems to believe that opinion bars the argument we're making here but it doesn't and the sparrow is a pretty straightforward case that the information just charged a person with a cell of controlled substance and some are under the b i's interpretation there's consideration it's illicit trafficking what's more the chevron issue never came up in fact spat i think in a footnote three the court specifically said good morning your honors in may it please the court attorney seventeen o f leo on behalf of the united states attorney general the board of immigration appeals here properly applied the modified category categorical of pro choice in determining that the crime that petitioner was convicted of under age ninety three point thirteen one a is indeed an aggravated felony as set forth on the ryan a one zero one a forty three b and based upon this court's decision in spot hole i believe that it is unequivocal that spot whole resolves this particular issue before this court at this particular time with regard to the application of the modified categorical approach conducted by the board in this particular circumstance the board as it is able to do went ahead and look because eight ninety three point thirteen one a is a divisible statute what the board went ahead and it is looked at the criminal information as well as the other documents that it's allowed to review under this court's decision for  progeny and in making that determination it was able to determine that this particular crime that petitioner was convicted of was in fact a crime related to illicit trafficking specifically specifically the sale for monetary consideration and a violation under eight ninety three point thirteen one a day i would also invite this court's attention to the plea for him which is on administrative record page one fifty nine which is also signed by t defend then in that particular case as well as the judge in the prosecutor and defense counsel which states specifically the counts one in three where for sale of cannabis there's no question with regard to that at all taking into account the what the board of admin gratian appeals needs to do and as they did in this particular case was look to make a determination of what elements or what particular crime under that what is clearly a divisible statute that individuals convicted of and if you look at this particular situation when you look at the plea information as well as the police form the plea form says unequivocally under counts one and three sale of cannabis and when that worked in conjunction with the criminal information which says well they changed quickly the information says sale or delivery for monetary consideration with regard to the plea when he actually withheld withdrew his not guilty plea as subsequently entered a plea of guilty that in that document says unequivocally on page one fifty nine of the administrative record that counts one and three are for the sale of cannabis now taking into account that plea form which the board king in review under the modified categorical approach on their mathis as well as on the taylor shepherd for jarl case in this particular circuit that it clearly falls within the parameters of united states attorney general which says sale under eight ninety three point thirteen one a is inherently a commercial transaction and as a result is illicit trafficking for purposes of the i n a one hundred one a forty three b so when taking into account that the board is what the board is able to do with regard to application of the modified categorical approach which i feel here is not is not in dispute  t the core that this is a divisible statute and as a result being we're here yeah of course right and which is it because it's of the visible statute and you're able to go right beneath him to look at the criminal information in the charge sheet in the form taking that into account this particular case falls clearly within the parameters united states versus spot ho with regard to that this is a sale for commercial for as a commercial transaction for monetary consideration specifically i'd like to go a little bit further with regard to the this entire mens rea element that petitioner has been bringing up with regard to this particular offense partitioner cites to forty eight separate jurisdictions would specifically discuss whether or not mens rea a requirement is required for for illicit trafficking but i would invite this court's attention that even admit as admitted by petitioner in this particular case in two thousand and eleven the the florida legislature took out the mens rea requirement for purposes of eight ninety three point thirteen eight and so in with regard to that and tying that into illicit trafficking there is nothing in the record there's nothing to indicate that illicit trafficking requires that mens rea element in fact when looking at this court's when looking at this court's decision united states versus spot ho it effectively looked at lopez versus gonzales which is the united states supreme court case as well as the l decision cited by petitioners as well as cited by respondent in their brief to this court which talked about the definition of illicit trafficking and there was no discussion whatsoever with regard to the requirement for a mens rea element so this whole idea that we need to now insert a mens rea element into alysa trafficking for purposes of the i and a i think is simply a red herring in this particular case because there's simply nothing to suggest that illicit trafficking on the one to one hundred forty three b the general definition of a crime requires a mens rea element now it's important to realize that even this court and donna will talk about drug trafficking and that drug trafficking did in fact require a mens rea element but this court chose not to discuss a men whatsoever with regard to its definition in its interpretation of illicit trafficking in these verses attorney general decision so again this whole idea that we now need to act on it at the behest of of the florida legislature or with regard to the interpretation of the the trafficking in kind of turned on its head decisions of this particular court and now insert a men's very requirement for this particular offense i simply think is is incorrect and something that simply is not supported by anything other than the fact that there are a number of other jurisdictions as there are that that differentiate between illicit trafficking in the like for this particular case here there's simply nothing in there's nothing to r i there or maybe there are other concerns with regard to crimes involving moral turpitude of potentially other other charges of remove ability under the i n a with regard to his particular offenses so the case would go back to the board of immigration back to the board of immigration appeals subsequently be reopened and then the agency is at its discretion of that particular time where that you issue another notice to appear with regard to any a number of any of a number of removal factors as well as simply denying cancellation of removal as a matter of discretion which is within the power of the executive agency so this court could conceivably send them back in the bor in the  agency will go ahead and deny cancellation of removal as a matter of discretion subsequently arguably this court would not even not have jurisdiction over the discretion or dirt determination of the attorney of the agency in that particular scenario  out of curiosity the arrest took place twenty eight years ago he's been living here for thirty years and he's here since he was nineteen years old well that could be the it can those facts as far as his residing here the number of years he's been here is correct he had the conviction actually did not occur until twenty october of two thousand and fourteen so he was subsequently notice to appear subsequently for a notice to appear was filed after that fact he was a lawful permanent resident in eighty five but the conviction of itself was in two thousand and fourteen so as a result of that conviction as a lawful permanent resident he subject to remove ability he has the opportunity to quote unquote cancel that removal under the i a e a absent there i understood now i have i'm looking at the charge sheet right now your honor and it says may nine hundred twenty fourteen a charlie county florida and that was relating to the aggravated assault offense i want to make sure that county floor so your facts are correct with regard to the number of years he's been here he's residing here those those specific facts but as far as the actual facts related to the conviction it was a twenty fourteen set of events that sort of kind of mushroom and that's why we are here today because that's what caused this notice of appeal noted notice to appear to be filed in immigration court with regard to a lawful permanent resident or so it in in short your honors it i s clear from the record that this court's decision in spa attorney general controls this particular case because petitioners conviction specifically under eight ninety three point thirteen one a is for sale for monetary consideration for sale under a ninety three point thirteen one a and it is in a commercial transaction as a result it's a list of trafficking for purposes of want to one hundred forty three b the fact that it is illicit traffic aggravated felony and as a result this particular individual is remove so it is removable as a result i would i would request of this article court that the petition for review be denied thank your hono if your honour's two points first the government saying well if you look at the plea a plea agreement you know he signed or somebody wrote and it's handwritten cell were here reviewing a decision by the board of immigration appeals the board immigration appeals decision does not mention this plea it's solely and wholly rested its opinion and decision on the information we shall sail or delivery and he's saying and the government's now saying well maybe you should remind it again in the response to deny requests or remained had they they did not mention the plea had they mentioned it in the reply brief we would come back with the argument that you know you the government must show by unequivocal clear and convincing evidence that he was convicted of that crime and that maybe it's not clear convincing and unequivocal in this situation the second issue by the florida statute immense rail this is this is i think the logic is for the straightforward illicit trafficking is a generic crime when there's a generic crime the supreme court has said you must look at the modern codification of that crime in the states and see what the majority of the states do in this issue ation forty eight out of fifty it's not even close say you need mince reya of the knowledge of the alyssa nature of the substance and the reason for this is that aggravated felonies are supposed to be serious things you don't want somebody being not only removed but not even having the right to seek cancellation removal for something that is essentially negligence or they did something without knowing that it was actually sort of some sort of aggravated felony some sort of serious crime as that is why forty eight states say you need to have knowledge that the substance is licit and that makes sense that is felony drug dealer and anybody in common with common sense would be like that sort of person does not belong in this country it's another thing to say somebody who might have to livered some sort of substance without knowing that substance was legal is some sort of