and improperly imposed a heightened burden of proof on the petitioner to show that his firearms conviction had been vacated for immigration or rehabilitative reasons on september eighth two thousand and three the i j a immigration judge concluded that the petitioner was ineligible for two twelve three relief and four to forty a cancellation of remove all for permanent residence both applications had been filed with the court since two thousand and one and were pending with the immigration judge tobar the sixth two thousand and three a timely notice of appeal was filed to the board of immigration appeals one day later on october the seventh two thousand and three the petitioner father motion modified in replay to twelve twenty under the california penal code thus the conviction was no longer for a firearm and the petitioner was eligible for to twelve to relieve the board never asked  board made a finding that to respond it had not presented sufficient evidence in support of the motion remained in tonight you have to show some kind of evidence that it wasn't for rehabilitative or immigration purposes well the big issue the ninth circuit in another case now if we can solve this is place the burden of proof on the government to show that i appreciate that but don't you don't you have to at least raise some sort of suspicion that maybe this and that's the case that you could prevail well i think the petitioner in this case has the burden of production he produced evidence which was the court minutes that the conviction no longer stood as it originally was the immigration court key question is what happened and why why did that conviction disappear and i don't know what i'm going to do you have now that it's going to survive the test well i would like to point out well there is a court order letter dead letter and as far as where you get back and somebody says well what was the what was the reasoning behind this change from a twenty five to a twenty and there's nothing well respectfully that's not th you know but we don't like to engage in useless attacks but it it wouldn't be useless at all he's you know you have no idea why this happened when you're beginning to smile why did it happen well there's no record evidence of why it happened and you know do you know why it happened no i don't you know i don't i was not the attorney of record i did not enough evidence course your collegial opponent is going to stand up and say we don't have any jurisdiction to entertain this because it's really a factual issue here is your response to that i guess from your reply brief that it really has to do with the standard used by the b a a therefore it's a legal issue right good morning your honor terry scattering for the respondent i'd like to begin by first pointing out that the petitioner has not raised a challenge to the immigration judge just determination that he can't get simultaneous to twelve c and cancellation relief he's attacking his removal order on two different bases the firearms his alleged the alleged baker of his firearms conviction and his rivera sanchez attack on his aggravated felony conviction i'd like to begin by addressing the rivera sanchez argument that he is asserting that he is cancellation eligible  under the reasoning of rivera sanchez which he asserts knocks out his drug trafficking conviction for as it threshold met with the court lacks jurisdiction to consider that argument that argument was fully available to him throughout his removal proceedings were very sanchez was decided before he again conceded the aggregate aggravated felony charge in july two thousand and one he in fact of the decision he cited in his notice of appeal to the board he never raised an argument under rivera sanchez moreover contrary to his assertions before this court it's not a foregone be able to get some kind of relief that's all his time yeah well he would need to so the court had no question as to the real question is first according to your position whether we have jurisdiction or not and secondly whether or not to go back for remains that correct seems to me that as the as the great briefer argues that this really is a case where the question is whether the board used the proper standard and the board seem to recall seem to require conclusive proof when the board itself has told us that all you really have to do is and not required a conclusive showing assuming the facts alleged to be true rather we have been willing to reopen quote where the facts alleged when coupled with facts already record satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopen that's not the standard that the board used in this case well your honor in this case the actual evidence that was proffered on the issue of whether the firearms conviction was vacated where the clerk's minutes which did not show that the conviction even was vacated here the petitioner was relying soley that's true but the question is the standard if i read the way the said things you've got to prove it conclusively right here right now rather than just showing enough so that would be worthwhile to develop the issues for the plenary hearing enough the minutes are insufficient they don't even refer to the case number of the minutes show only that there was a suspension of a sentence if you look at the minutes carefully they don't go nearly as far as coun suggesting moreover the the court order from the actual criminal court is not part of the record on review here that was part of the record even though it may be part of your bundle of the administrative record here that was presented on the motion to reopen some of the ministries of record i think it's physically in the ministry of record record this it was part of the record though on the motion to reopen which was voluntarily withdrawn so it's not properly before the court but moreover there's still the issue even if we i mean our position is that you can't consider that order that order in itself gives no hint as to why the conviction was vacated and council standing before the court presented to the board because there is nothing there that would help the petitioner i mean the law is clear that vacate or of a conviction is not enough to remove the immigration consequences even found that the conviction was vacated it was not asking for conclusive proof it was examining the cross that was actually offered and finding that it wasn't sufficient right but the standard where the new facts when coupled with the facts already of record satisfy us that it would be worthwhile to develop the issues further a plan or a hearing on reopening well that's that's a that's a different i mean if you're just saying he's got something there so the question is did the board really make a decision on whether or not it will be quote worthwhile to develop the fact you choose for the right of plenary hearing well then we get to the issue of what does the board mean by engage in fact finding itself right so it needs to send the matter back to the immigration judge but with the board is looking at is the evidence supporting the motion to reopen and that that is where you find the facts alleged not in the assertions of counsel now any other reading is going to you know virtually every case would have to be remarried did so i think not i mean basically the attorney is making a motion he's alleging know the you know what he's done is to financially a little bit more on each successive motion but the board is addressing the motion to remain and that's before it and when it had that motion the petitioner was represented by competent counsel and did not produce enough to produce to raise the price of face the question as to whether his conviction was even baking it i think it's a real question why didn't counsel produce the actual order from the criminal file why did it why did he rely solely on these minutes which on their face don't tell the board enough to know that there's a reason to re well you're right i mean the paperwork is tremendously sloppy and anybody who submitted this gets a bad grade there's no question about it we don't know though in the end whether there is even any actual harm to the fishing or because as we stand here today counsel cannot tell us why this conviction was vacated for these reasons we submit that the board's order which rested on the record before it should be affirmed thank and the record on the cocaine conviction is even more spotty well yes because this was never presented below and the board never had occasion to perform the modify categorical an analysis because he had conceded that he was an aggravated felon on that never held that it that what evidence needs to be presented to show that this is enough and now we will remain the minutes were submitted to be i said well that's not enough you should have submitted something else these minutes are almost a joke submit minutes like this and support of these allegations well the board are as documents that are out there that are conclusive and this is like one of these minute show they show that the conviction was modified and it's an issue that could properly be filed by a trial court it's not a heavy burden of the production she is not going to go and engage a whole new hearing based on fun stuff like best well then immigration purposes well the board never called into question the fact that the minutes didn't relate to the petition here or there were some other issues they assume that they did they just said we don't think the minutes are enough they don't call it a question it's nothing at all about the reasons why this