confess to any error on the part of the board in oils view this case should go back to the board so that the board can consider in the what else is the first instance the issues that we presented to the court in our in our br the immigration judges finding of the portability we not only appeal to this court we made a motion to reconsider at the board and we explicitly raise the issues that we're raising here at the board in the board said in its decisions and i am going to reconsider that it is one that clearly in convincingly has been shown to relate to a controlled substance a substance that's controlled in section one of two of the controls and why is that not the case well if you look at the record of convictions your honor there's absolutely no two counts of violation of eleven three seventy eight possession for sale of a controlled substance and eleven three seventy nine a transportation of that he did he pleaded guilty to eleven three seventy seven and right simple possession of a controlled substance state regulates controls a broader array of drugs than federal law in order to establish the portability the government has the burden of establishing not only that there exists a conviction but that the drug at issue is one that controlled not only under state law but under federal law count one is purpose possession for sale three seventy eight count two is transportation eleven three seventy nine and eleven three seventy seven  possession right that's what he pleaded guilty to and you're saying there's insufficient basis of syria to conclude or to infer that the possession was the drug referred to in the complaint methamphetamine exactly and martinez pat is on that point i think is controlling that was an almost identical situation but if you look at page one forty two of the record i mean this was sort of a critical document because the government might have a stronger argument if this were necessarily a lesser included offense but they didn't circle lesser included or reasonably related all the government all that had to be shown under people versus west in order for that criminal court to accept this plea is that the can they plead the conviction was reasonably related to the charges set forth in the document and the information and but to be reasonably related under people versus wester just has to be what's called a categorical similarity and by that i mean that the the plea has to relate to drugs and clearly does so under people versus west the plea that he ends it was reasonably related to the charges and in the information but he wasn't convicted of possessing math and what's important here because ultimately what we're doing here is w essentially we're applying that modified categorical approach and under the modified categorical approach  the government is limited to certain that is limited to the record of conviction and here the record of conviction that relates to the conviction says nothing about the drug it's entirely silent about the drug now r one zero zero three point one eight one one in that section the attorney general can certify case to himself from the board thereby eliminating a final decision about what that is what the government's asking here there are other remedies what the immigration judge the immigration judge didn't have an opportunity to respond to that nor did the board fully address the issues so that will examine the criminal record of what's contained in the administrative record yes criminal record only was august twenty sixth two thousand success not before this court now so based upon the record which under i believe it's forty two before any we're looking at the record as of the date the things and it should be decided on the administrative pressured upon which the order of removal is based and that would end on june twenty second two thousand and four so based upon the record as it stands before this court this should be remanded to give the board the opportunity to provide specific analysis on the modified categor approach which was not raised before the immigration judge was raised before the immigration judge the petitioner simply claimed that he denied all the allegations in the n c a a and and denied his removal ability he didn't but at this point nobody's bothered to look i can speak whether to the department of homeland security and and which we've spoken to may have but i have not been informed nor does the attorney general office been informed of anything but you're relying on allegations that he's deportable your honor we deny those as a matter of burden of proof he's basically asking the judge to see if the government's going to meet their burden of proof and then i'm page one twelve the judge says to the government in let them doubt you have not alerted me as to what the substance is so you can have to prove that that's a constraint substance as defined in section one of two of the controlled substances and they came forward with the documents that are in the record that begin here on page one forty one the government the judge based on those documents made a finding that they had demonstrated by clear convincing unequivocal evidence that he's deportable that it was meant nothing for well actually he didn't he said he mentions math because the first conviction is not appealed and in our notice of appeal we specifically raise this issue in the notice of appeal and this is on page sixty three  and it carries over on the page sixty five on page sixty five we make this argument that there's not clear and convincing evidence that the what the drug yes that's the whole that's all that set forth or on page sixty five and then in the brief that's filed and this is on page begins on page twenty eight to nine page brief that's all about the fact that there's no evidence as to what the drug was the board rules against us we appealed but we didn't want to litigate this case because we know like they know that the board was wrong so we made the issues as presented in this case to determine what the substance was no your honor i have it because i'm focused on the administrative record and the issue here is whether the government met its burden and its so what do you ask us to do to find the government failed to meet its burden of record that the drug is math and it's not again under the modified categorical process we're not looking at his conduct we may all think that it was math the issue here though is what was he convicted of and if the record of conviction doesn't unequivocally demonstrate that it's that the board had not addressed that was whether conditions had changed and because the board found no past persecution they never got to that issue about weather conditions and change here this issue was brought to the boards attention twice and when we raised it in the motion to doctors applying these proceedings i just want to kind of very briefly that makes me ask you one of the questions we will give you time what from your point of view should be the standard that we would apply to the government's request for me man at this asylum claim and they were asking that it go back for consideration of current country conditions something that the board necessarily could not have considered i mean here it's patently unfair for us to have to litigate this over and over again at the board we have to appeal to the ninth circuit these clients don't have any money for the most part we get to the ninth circuit we know they're wrong they know they're wrong and then at the you know they can pull the rug out from under us when we're when we're about to get a ruling on the merits it's not right so at some point these cases have to end and it's not right for the for the government to simply ask for when and without confessing err that's the basic problem is they can and that what they're doing is they're saying they know that the board was wrong they know that but the board want to allow them to confess air and so we're in this ridiculous predicament t this particular procedural posture he's nothing more than counsel to the board and the board is not saying that decisions are on the board it's not that it has not so a sponsor reopen this case so this case is properly before the court  are you working with any organization that is generally interested in immigration where your fees are being paid otherwise it's ok twenty five percent of my cases that i handle this quarter probably p didn't do your burden of proof and you got to show what the substance of yes but he did i mean my i'm sorry if i misstated your own i don't mean to misrepresent the record in any way but what i was saying is he didn't raise the modify gotta go girl coach argument to the immigration judge after the immigration judge had had