district court agreed that she had the possible grounds for getting your u v s because of that and despite her aggravated felony combat was there anything before the immigration judge that suggested or should have alerted the immigration judge to the fact that she qualified for a u v so or qualified for some other base are you putting that kind of burden on the immigration judge to consider every possibility and ask  evidence for example like there was in the right of or swallow flores but that's the issue that's an entire i believe we are talking about is an entirely different line of authorities that talks about when facts arise in the course of an immigration hearing that suggest hey there might be some relief here that's available i have to explain that and talk to you we're relying on something else entirely and that's this kind of discourse of lines of authorities most clearly  let's just assume i'm not sure this is your best issue here because just assume she was misled by the by the i j a how did she demonstrate that she was possibly entitled to receive a u visa when she said she wasn't cooperate with the prosecution well your honor first of all we've pointed to four cases now that have women who under very similar circumstances have got to have plausible grounds for u just mentioned is something that i want to talk about race while the floras and that case as you may recall or you may know the woman when she was a teenager alleged that her uncle attempted to rape her and then after cooperating with authorities for and convinced her to drop the charges and she did so the case just died several years with several years later she's an immigration hearing when her case is back before court on a thirteen twenty six prosecution the prosecuted but he never less was prosecuted and did sustain a conviction and in fact in the reply brief i pointed to a couple of days one of which was quoted i believe in  administrative appeals office which reviews immigration decisions and they said in a very factual situation you know that the fact that this domestic violence victim  after initially cooperating with authorities ultimately did not want to pursue a prosecution did not make her eligible for you visa really so i think that that that this is and should not be a frond factor here that's some point in your argument could you please address the significance of the appeal away from and  has strong language that none of those appeal way vers have to be enforced well your honor i i think the that we're not going to situation where we well within the scope of the appeal waiver because what the appeal said is this is hernandez preserves the right to produce to appeal the denial of her thirteen twenty sixty motion now let's assume for a minute there was an appeal or until waiver if she brought that motion and went through trial and then we were up here on appeal dealing with that motion for all the reasons i explained in my brief the lorenzo issue would still be viable because it is claims not arguments that are forfeited or waived so if in a in appeal without a plea agreement by bringing this motion she is sufficiently preserve the ability at this time when there's a new case out there creating this new alternative  can raise it as a preserve issue then the appeal waiver argument just falls away because she's preserve that she's preserve the right to to appeal anything she can appeal rooted in the denial of a thirteen twenty sixty motion and in that motion she made the overarching claim that her find her deportation order was fundamentally unfair and she made certain subclans and one of those claims is even because she was not deportable is char now admittedly that's because it wasn't an aggravated felony but the theory on which it was an aggravated felony was entirely different and the one that she preserved was entirely different from the theory and that's true if i mean theory you mean a different argument and i think that that's i mean i guess that's where we parse out what the difference between different claim is and different argument is my position is that certainly the overarching claim is that the deportation order was fundamentally unfair and even a sub claim of that is that one reason was fundamentally unfair is because she was not deported as charged with that in mind she can now with the benefit of this new rule rule that the court adopted just a couple of months ago can say hey her she was not portables charged because of this reason and again the court addressing this now in the government addressing this now creates no prejudice it's just something that as we were recognizing henderson this is what we do when when cases arise when when cases are on appeal i'm not me ask you a basic question about that and the government has argued here relation haven't had the opportunity to contest it but the question is whether you can that there are no geometric isomers of methamphetamine so it doesn't make any difference what would you be able to dispute that was some scientific evidence i am not a chemist so i have no doubt answer that right now i will say as i pointed out in my unsuccessful most for reconsideration saying that these docs to me should be considered at all i will say though that it's not it's not an appropriate consideration at all from this case the government's revering pushing for a hearing is due on friday and lorenzo and it be raised here and if it can be raised here what your response to it have you looked into whether you would have a response to that argument whether have i consulted with the chemist's no because i don't think that that's an appropriate for whatever stage we're at now that's not an appropriate thing for for for me to do i will say though that so how should that issue be addressed should it be remanded to the district court in this case for an evidentiary hearing on that note because i think that if  i can go back to your original question right it was that this was resolved in the runs it wasn't if you look at that i didn't say it was not addressed and could what the court said was the immigration judge said hey i that that they're for ever bound from making that argument because they didn't make it in lorenza is that your position that they cannot even if it's true that there is no such thing as a geometric i  decision if they don't do that kind of this court or the supreme court could review that decision but if none of those things happen lorenzo is precedent on the principle it's clearly quoted principle that when it comes to a level three seventy eight convictions based on methamphetamine the definition of methamphetamine is broader than the definition of methamphetamine in the federal control of texas so you're saying we can't consider that in this case under any circumstance that applies equally to aggravated felony definition so that there's no way to distinguish one from the other once you acknowledge that there are there's over breath and indivisibility with regard to that statute in that substance  and you can't they i mean that's to say you were asked you know to respond to the declarations were submitted by the government i think this is what judge and it was asking about had like to make a run well whether there's some of basic scientific basis to challenge them i mean have you look at that and i didn't i didn't look at the just yesterday i looked at the two district court cases where the government has filed these declarations recalled they filed them and then here would be meaningless i think that whatever should happen should happen in lorenzo and if lorenzo is decided with the government trying to say hey here's this new evidence we didn't present you're wrong on the science and therefore you should change your decision if that if the panel and lorenzo doesn't change anything in the court doesn't change anything then i don't think a remained is appropriate as i don't and the government frequently cites points of kind of the fentons taking responsibility for for even in the last case or for the way they want to get a case and you know you have to deal with the way the cookie crumbles and this is a situation where that kind of not because i would hope that the court would grant relief on the u v says she was completely separate but if the court is not inclined to do that although as i explained in my prior filings this court kyle ryan for the united states the defendant in this case is a four time convicted felon two of her felony convictions are drug trafficking crimes and the first drug trafficking of crime form the basis for her lawful deportation from the united states there are no less than four ways then the court can affirm the district court's judgment in this case you just issue immigration judges as a matter of due process are not required to advise about visas that cannot be obtained in immigration court even if there is a due process requirement there that requirement was not triggered in this case because there were no facts in the record suggesting the defendant was potentially eligible for a you visa that's the locus alaska's case even if the duty was triggered it simply wasn't possible in this case for two reasons she hasn't shown sufficient evidence that she would have been helpful to law enforcement and she hasn't shown plausibility that she would have obtained the necessary waiver in this case because it's not in the national or public interest let me talk to you paula the waiver i guess where in the agreement does it limit the kinds of arguments i guess that commanders can make on appeal it says what she can appeal but i don't see anything about the kinds of arguments arguments she can make in support determination i believe it's in paragraph three the and the average determination from the district judge doesn't talk about the definition of methamphetamine it doesn't talk about isomers the defendant's motion to dismiss doesn't talk about the definition of methamphetamine are isomers to say and i think it's it's telling that the finance reply brief actually describes these new lorenzo claims as quote new and different quote unquote and quote separate and distinct grounds be they have nothing to do with the arguments that she made before the district court but aren't those grounds are the adverse determination not the arguments made in her motion to dismiss i mean we just say she waived her right to appeal altogether if she if the adverse determination and which i guess the district court's order had been based on a ground not raised in the motion to dismiss the district court's order simply doesn't discuss anything relating to california's definition of methamphetamine isomers it talks about whether california is controlled substance schedules themselves are divisible which it finds that they are and was that was affirmed in martina's lopez and so for that reason the defendants waived the right to bring any other claim she's saying essentially well i said it was fundamentally unfair but if that was the standard you could almost appeal anything it in that could have appealed that wouldn't have been waived by simply pleading guilty that's my question dr wright i think she still would have waived it for the same reasons that by pleading guilty it wasn't preserved and in this case i mean we have the plea in this case that the reason that the government entered into the plea agreement was to avoid issues exactly like this that's why we enter into these conditional plea agreements giving the defendant the right to raise the specific issue that was raised before the district court and nothing else but here it seems like it goes to the drafting of the plea agreement a little bit because just referred to adverse determination i mean could been more specific i guess because here the adverse determination seems to be the district court's order at meant and so for that reason the defendants wave these lorenzo claims but even if even if she hasn't two other reasons why the court can find in favor of the government there's binding precedent already on whether section eleven three seventy eight based on it doesn't address whether something is an aggravated felony or not we have it this is an aggravated felony based on a controlled substance so how do you make that distinction lorenzo simply didn't didn't make that finding it's not talking about an act it remained on that issue and when it's back to the board of immigration appeals it's going to be a fairly simple argument there's binding circuit precedent on this point or run so it's a three judge panel overrule another three judge panel on this issue or stand there but it just seems that the aggravated felony and lorenzo was based on this controlled substance and so if the controlled substance you know there's a defect there would not affect the aggravated felony well your hon and maybe i should get into the science just a little bit of it we can't get into the science but you know the best there are the appellate here didn't have an opportunity to respond to that and i know we allowed you to supplement the record on appeal but i guess as you get into the science if you could also comment if you think we can base a decision on two contested declarations about g a uniform voice on this issue that is not playing it's not clear on its face and so for that reason the government wins on this issue but even if the even under the plane their standard this talking about the science for a second regulations say that whether something is a nice summary of something fairly straightforward and uncontroversial and in this case the declaration is made clear that methamphetamine and only exists in an optical isomer form and what that means is that it's the same molecular structure it's the same sequence of atoms but they're mirror images of each other and there's two types of isomers for methamphetamine that's interesting why why wasn't that argument made in  don't know why they didn't make the argument and lorenzo your honor but lorenzo didn't decide the issue that we're we're talking about here today they specifically said that it was not the immigration judge's decision was not supported by the record to be i didn't adopt it and the government didn't make the argument there and so that's why we're able to make the argument here it's a different record we have different evidence in this case we've shown that geometric isomers of methamphetamine do not exists so well i have shown it a little late in the game i mean the other side hasn't had the opportunity to even address it while the defendant didn't bring it up in the first place your honor that's why the government didn't address the issue before the district court that's why it was necessary to supplement the record on appeal and so even though the prosecuted because it's not a crime exactly but it doesn't exist you can't be there's no realistic probability you can be prosecuted for something that does not exist there are some cases that have talked about how textual over breath are sufficient on their face but the cases are different than what we have here and in those cases for example they're talking about burglary of a house or a vehicle and the government has said well there are no cases where someone has been convicted of burglarizing a vehicle so it's not more similar example would be if the burglary statute says burglarizing a house or a floating that even though superficially you include the floating castle in the definition that doesn't create the over breath that defeats the realistically kind of supports my argument that the reasoning of both cases are similar that that once you and you keep in mind that lorenzo didn't reach the final aggravated felony issue only because of the court's precedent saying we can only reach the considerations expressed he considered by the be able we can't go on as other issue but that last sentence i read as a wink wink take a serious look as to whether or not this falls on the same reason