burden for a motion to reopen when a conviction has been vacated by the bergen for the mission to reopen should be on the government or on the the immigrant the respondent in immigration  convincing evidence and and he's also required in order to get the mission to reopen the respondent is required to show by clear and convincing evidence that that they could sure if his conviction martinez incorrectly stated that there's a circuit split between different federal courts and on who bears the burden and what the burden it's reopening when the conviction has been vacated and that it's not it's not accurate to say that there's a circuits let me in the ninth circuit a two thousand and six case may be found to be a acted arbitrarily irrationally contrary to law in denying on the other side that the burden was the move and however that case actually had a very different posture than normal immigration court cases and that individual had a final order middle  the indiana post conviction statute which can only only overturn on the bay kates convictions based on substantive issues there was not a verified petition under that statute yes it was not i that when a new decision is based on a state statute the board should look to the language of that statute and the motive for her for asking or make it sure is not important what's important well there has to be some basis in the record for concluding that the vacate was based not on hardship or other non substantive criteria it has to be assessed that the conviction still counts unless it was vacated for substantive legal reasons or procedural reasons and we just we've got no evidence of that it's just vacated by agreement parties which verified petition with information about the substantive defect of the procedural defect in the conviction and we don't have that here so there's there's just an insufficient basis to go any further with the analysis in this case well what i would argue your honor is that because we do have an indiana  can no longer stand because the conviction no longer exists and that once we've shown that crime if they see that it is that it's more likely than not that it no longer exists then that b a should reopen the proceedings  o look more like everybody agrees it's been vacated but the question whether it's still counts for removal realty depends on the grounds and mr singh didn't put in the grounds with sufficient clarity to demonstrate that it was a substantive it keeps your or because of some procedural defect so it may have been because of immigration hardship and that that doesn't  eliminate the conviction firm ability purposes but even assuming that it was for immigration reasons which i think and we would argue that they just based on the fact that it was not for immigration purposes how do you know that because it was done under the indiana pacers condition statute in which you can only it has to be based on the merits of the underlying facts ok and what were the merits that were presented to the as a felon then we would know it was not for immigration purposes and right now we really don't know the morning may please the court i'm virginia gordon for the respondent your honour's this case hinges on statutory and regulatory interpretation mr singh is subject to a final removal order on the basis of his indiana deception conviction and the board reasonable and permissible interpretation of the statute and regulations in three areas support the survivability fine first is the board's requirement that an applicant seeking to reopen removal proceedings based on a vacated conviction must bear the burden of proving why that conviction was vacated second is the board's reasonable interpretation of the plain language of the phrase one year or longer with regard to a possible maximum sentence imposed for a crime involving moral turpitude and third is agency's interpretation of its own regulations that permit the da just to lodge additional or substitute charges at any time during ongoing removal proceedings together these issues lie at the heart of mr singh's remove ability because his conviction for deception class a misdemeanor in indiana renders him removeable and ineligible for cancellation of removal the only form of relief for which he could apply to returning to the burden of proving decatur on a motion to reopen the board was reasonable in it decision a matter of chvez martinez on which it relied in denying mr singh's motion to reopen when i place the burden of proof on mr singh to show why his conviction was vacated the statute is silent about who bears the burden in such a situation now although the statute provides that in the initial case when d h just charges and applicant with an alien with remove ability it must show by clear and convincing evidence that that alien is removable alien has a final order removal and later seeks to reopen receding there is no statement about who bears the burden in the motion to reopen other than the general motion to reopen burden which is heavy on an applicant to show that the evidence he wishes to present will likely change the result of his case given that heavy burden it is reasonable to ask the applicant to prove that his conviction was vacated for substantive or procedural reasons because he as the board said is in the best position to know why that conviction was vacated and there the board did not say that there was a circuit split on this issue in fact it just mentioned that there was a conflict because prior to  chvez mightiness cases simply looked at these motions to reopen and without extensive analysis ask the remainder to the board to say reopened to see if just could meet its burden perhaps following chavez martina's in the future case it may reconsider we don't court has recognized that the evidence does not show why this conviction was vacated one single reference to petition for posting a picture removed does not prove that he used the indiana rules for post conviction relief and previously when mr singh vacated his corrupt business practices conviction he submitted to the board the petition for post conviction relief that is required under the indiana rules and it is not clear in this case why he chose not to submit that document at this time but he has but even moving on to the meaning of one year old longer the board reasonably interpreted this the plain language of the statute in saying that a conviction with a possible sentence of not to exceed one year fits the read the statute in that way as well as the second third eight the ninth circuit's in decisions that have upheld the remove ability of aliens who had misdemeanor c i crime involving road to turpitude convictions w possible maximum sentences of up to one year and given that the indiana crime of deception which you argue would remain valid because there is no proof that it was vacated first absent of a procedural reasons has a maximum possible sentence of that during removal hearings they just may lodge additional charges at any time this in this case the proceedings were ongoing they had been for quite a few years and at the point when opportunities and hearings before the judge by counsel orally i believe a motion to terminate a motion to strike the adjusts his opposition to the motion to terminate an appeal to the board a motion to reopen and reconsider with the board