that the court vacated the finding of guilt and move this case forward for him to go forward if it and i thought about it this way i think maybe if we think about it this way what if mr pay on jack as violated some term of his probation while he was on probation he would be brought back before the court and the court would say ok what is your plea that's the first thing the court would do because the court's already vacated what it did before so it's got to start all over again in order to whether to determine whether or not beyond a reasonable doubt that he was possessed cocaine in may of two thousand and five or i don't remember the offense date but but in that timeframe  that's correct the the order the and i can refer i bookmarked it tell you at the administrative or at the joint appendix pages one sixty six and sixty seven the court does state the court here by t finding of guilt as to the indictment no he didn't vacate the plea and he couldn't have under the virginia statute as i read it the plea in order to kind of trigger the deferred statute right i to finding guilt and the restraint of liberty has been imposed doesn't say anything about it just so that's what you things to have happened why would congress care whether they happened on the same day or on different i just don't understand i think it's the and that i think congress pointed out is that and simultaneously congressman and simultaneously it would have gone i think that's the only reading that you can take of the end is that it that it does mean simultaneously that there needs to be the plea and it be said be the restraint on liberty that applies reading i don't mean a court i don't think you need anybody's closely argued the point of what the what the end means and that's deferred and even though he may have used the word fake package if fact that what he did was to follow this stacked which which then says i'm going to defer it you complete this in the end of it i will dismiss it but if he's vacated it that would be nothing to dismiss down the road at least that's the way i look at it but i'm and maybe that might be your point of contention but if he follows statute that's not of vacating that's happening here is to defer as i told my colleague yesterday when we were discussing this exact point over on because i'm not sure that they can do whatever they want and i actually think and help me out with this because i have been puzzling over this virginia statute it looks to me as though had he not vacated the finding of guilt he couldn't have use  the statute because this has to happen without entering a judgment of guilt that judgment of guilt stayed on the record i don't think he could have used this first offender statute right i think he had to vacate it if there was in fact a judgement of guilt on the record i don't think the statute applies any more it says pretty clearly it has to happen without entering a judgment of guilt yet i think he could have deferred a finding of guilt and he could have done done if he could use the word i for one twenty right about how it wasn't simultaneous but in the first one he made a finding of guilt right that's an interactive one when he tried to invoke the statute i'm asking what it would could he have used the statute had the original finding of guilt stayed on the books you think he could have i do i think he could have deferred it ok i think and he could have used that word defer to do that and i think that's i think that's why this case is different i think that's why this case fits more into what we were talking about in court what this court was talking about in cresco which is now actually a pretty famous case you you hear lawyer stalking about doing a crespo disposition and you hear coming also attorneys saying oh we're not allowed to do that i mean it's it's funny to hear to hear them go back and forth comes to that point i mean i know where we are i know what we're looking at now just just the rest of this case and i'm not sure how much the court really is interested in it if mr pay on jack has was not convicted of this offen we're talking about him being able to stay and work and get a green card and work in the united states just just like he had and he he originally got a green card it was a conditional residency where they want to assess whether the marriage is still valid after two years and that's why they bring him back on a seven fifty one that's the application you filed to remove the conditions on the green card mr payen jack has never did that the court though the immigration authorities eventually said well if your green card sober it's the only time when a green card really expires is in that situation and that's what put it that's where mr payne on jack has was the the the point i'd like to make there were a couple of other points i wanted to make from the the rest of the respondents brief i don't think you really say appellant in these kind of cases the petitioner and responded that gone that the finding of guilt was completely gone i don't think it was the fertile withheld or or anything else i think that's what the case law says i think that's what the only reading a vacuum are that you can make no matter as to the finding i think it does matter in this case either because there was no restraint on liberty at the time he entered his play that that came much later yes your honor that's exactly what was going on and nothing you know you and i don't see anything else he had he had his bond conditions but those weren't any restraint conditions well i'm not sure if he had been conditions doesn't it the the final order  the order from may twenty third of two thousand and five well and that's the wrong order the order from  and that's the ministry of record one sixty four and one sixty five where you can see that that was the only thing that the court said hey you got to come back to court that was the only thing that there's there and i don't think that that makes it for the purposes of restra the in the in the in what in my eight forty eight is talking about when you talk about restraint and i ask you a question just as it does seem like your argument necessarily hinges on this idea that the two things have to be simultaneous the guilt plea punishment and putting to one side i guess the terms of the statute just as a matter of common sense why would congress why would that have been important to congress my understanding of what was going on as congress as these fifty state systems and it wants one federal definition that will kind of cover all these various forms of deferred adjudication and what it's looking for is sort of consistency and uniformity so why would it matter to congress that maybe in some states it happens all at once and other states like in virginia you know the sentencing may be pushed back a little bit why would as a matter of common sense why would that make a difference i think it doesn't i think it makes a difference because the restraint and the should exist at that's what they wrote the a forty eight has an end in there meaning that they exist in the same that they are your argument is purely sort of a plain language argument it is plain to you from the face of the statute it might not make any sense but we're compelled to that statute that way i'm all yours but i'm not hearing you giving me anything you're just resting on the language the consistency has to exist one way or the other it's either we do it both at the same time or we want to or we treat these bifurcated proceedings in a different way congress picked all at one time and is there a common sense reason for it i wonder if there's ever common sense in congress but that's where the way the statute is written and i think this court has told us we have to follow what the statute says thank you very much court my name is greg and i represent the attorney general in cresco be colder this court reviewed virginia's first offender statute and it predicted that if a defendant pleaded guilty he was put on adjudication would qualify as a conviction for immigration purposes and that is what has happened here in may of two thousand and five and this is the petitioner pleaded guilty to cocaine possession in a virginia state court and if you stone our grace these trial judge made clear that that guilty plea was freely voluntarily and intelligently made and on that day that the state court did find him guilty of that offense defendant to twelve months of probation and that was a significant restraint on his liberty he had to comply with all the rules and requirements that were set by the probation officer neither processed nor consume any alcohol maintain good moral character maintain full time employment first is all first talk about the reading of the statute and then i want to talk about the facts the timeline of the case so the reigning of the statute is that in crespo v quarter this court said that eleven zero one eight forty eight a strain on the person's liberty doesn't say anywhere in there literally that there is some temporal element the t's two things have to happen on the same day i disagree with counsel i do not think the word and means the two events have to occur simultaneously today i had breakfast and i argued before the force for circuit court of appeals i'm not doing those two events at the exact same time but the two events have occurred so looking at a literal reading of the statute it there were a temporal element it seems that even that standard would be a matter here because he entered a plea of guilty that plea of guilty does not appear to have been vacated the state trial a judge said that he was vacating the finding of guilt the state judge never said i am vacating the guilty plea there's no evidence in the record that the petitioner withdrew his guilty plea or entered some other plea and this and under the virginia different offender deferred adjudication statute of there had to be some plea in the record and the only one we have is this guilty plea so looking at the timeline there actually is overlap when he came back to court in november two thousand and five there was a guilty plea that was on the books and then there was a order for a probation so even that standard would be met and hardship factors in this case and the effect that this has on the petitioner but that being the case congress to specify that in order to get this benefit cancellation of removal which would involve him being given lawful permanent resident as happening together to be that way so you think you just have to be totally absurd to the literal interpretation of it right because if there's any ambiguity we have some right what you're saying it would have to be that if you look at eleven on a forty eight a and you read it that would not that does not clearly state that does not state or give the impression that these two events have to occur on the same day and you can imagine throughout the that might be there sometimes people might plead on one day and get a sentencing order some other day sometimes it happens together on the same date we do not read we do not read a temp eleven a one hundred forty eight it seems just maybe you can just as one little thing it seems sort of counter intuitive to me when you put crespo together with your position in this piece right because if the defendant we use is to accept that does not qualify as a conviction for immigration purposes and it in respect to the crossbow panel that court made clear they they wrote in there that congress drew a line and perhaps if congress had been aware of how  they would have drawn the line differently but nonetheless they drew a line and the crossbow panel held that that has to be interpreted literally and so therefore if it is not one of these things if it's not an individual being found guilty or entering a plea of guilty or no contest or not admitting facts sufficient a finding of guilt then it would not qualify as a conviction so therefore mr cross post case he went to court and he pleaded not guilty the state judge said there are facts sufficient to find you guilty but the state judge did not find him guilty and therefore crespo held that that did not meet the strict reading of the statute and as to this case crespo was decided believe in obviously a conviction is in a thing in a question is to what extent would it would present an issue because you could be constitutionally she's you could say conviction exists if you walk into the courtroom that would that would reach into what judge gregory said sir and we probably would push it too far to go there but this is this is getting there i don't know but i think cresco kind of puts us where you say we'll i'm sorry john i judge i'm not quite following your question but what would have had to happen was the the defendant would have had to admit facts sufficient a finding of guilt but as moving forward to this case years later crossbows prediction has come true we have a petition which would satisfy some paragraph to some form of punishment penalty or strain on the aliens liberty and therefore those two events have come together and that would that constitutes a conviction for immigration purposes what if the would that be a plea we honor i just don't want to get in front of the b i on that we don't because we don't have that case and i do hope to preserve some discretion for the b i a here in future cases that if you have a situation we have a situation where there seems to be some criminal law or constitutional defect in the guilty plea itself or in a finding of guilt that the agency could take a look at that in the first instance because we're not trying to apply this statute to people who are innocent but asked to desk case because he has entered a guilty plea and he's not never contested not before the immigration judge to be ira or his opening right this would basically you know he said basically we're not going to talk but you'd have to agree if you come to some other conclusion on that you are saying that it would be an exception to the literal interpretation because it only says that you make the plea once you make the ple counsel mr robertson's argument what if that guilty plea is vacated because of a case for me is that it didn't happen and so that would raise some new and interesting legal question and matter of pickering to be i e has held that you know when when a finding of guilt is vacated for substantive reasons that then it will no longer qualify for immigration purposes so yes we do want to keep our powder dry as to use your phrase but i want to be clear that i'm not conceding t roberts and you have a few minutes right and i think the court for listening to my argument when is a conviction not a conviction is a great question and i think that's the question then this case and i think the only answer that you have to come to is that under this particular fact pattern and under this particular statute that we're dealing with both two fifty one and eleven zero one a forty eight that this particular fact outearn is not a conviction as it relates to this case i think judge harris makes a very interesting point where mr crespo did not accept responsibility for his actions if he did indeed possess drugs he gets the benefit of not being deported because he pled not guilty and unlike that and if you see something governments very literal reading of the statute the guilty means that because mr pin jack has pled guilty means he gets deported defendant plead guilty if you can plead not guilty and get the benefit of the statute because there are facts sufficient which a judge could make to find that  is required to do to make of the finding of fact so why would he have a plea deal especially someone who is people or he wouldn't and why did why why do people plead guilty people plead guilty because they realize that they have to applied and i also know just by experience by my doing criminal defense work that prosecutors several prosecutor's offices in reaction to crespo have said if he wants the program he's got to plea he's got to enter i'm i'm patronizing i'm not the way the first circuits rulings on how it interprets the i and i are are very beneficial in but it's but there are so many different ways to look at this very complicated piece of legislation the immigration nationality act that that you do have to wonder what was congress thinking when they wrote it where did they come up with some of these things and it does lead you to the conclusion that the only the only way that anybody can get any predictability out of the irony is to interpret it literally at every step and in this case the and i think the and it does carry a requirement that they both the plea and the restraint have to this is this is what we're talking about i and i think they came down on the side that they have to exist in the same at the same time that's that's right that's my reading of it and i i hope the court agrees i have fifteen seconds left to tell the court that the clerk's office here is fantastic and you are well served and so was the bar very well served by the clerk's office and i wanted to make sure we made that compliment on the record thank you