should be reversed and this case should be remanded to the immigration court for further proceedings that are consistent with the i and a and with the standards of due process this court's recent decision made a fine distinction about why this prohibition raised it in his appeal to the b i and then he also raised it in his notice of appeal to this court he raised alternative arguments in support of that appeal but he did challenge the finding a remove ability we did refer specifically to the utah conviction now in order to set the context for this we must understand that the two shooters like mr and dunn are not accorded counsel they have the privilege of counsel should be but may be able to secure counsel they do not have the objected to the use of the utah conviction as the grounds for as the basis for remove ability to counsel brief only raises the question of a kansas conviction your honor in this case mr rendon asserted the claim the basic claim that he was challenging the finding of remove ability granted the briefing was inelegant and perhaps pointed to the incorrect argument well it's not just an elegant counsel it's just wrong it just didn't address w brief didn't ask them to do your honor mr rendon again challenge the finding of remove ability in cases like le bron by the supreme court the supreme court has stated that the fact that  asserted different argument below than he has now if the b s a had reviewed the record of conviction and if this court in its current review of the conviction examined the record of conviction for the utah conviction the finding of remove billeted is simply not supported and again perhaps that is reinforced by the fact that the immigration judge in this case was forced to rely on petitioners testimony so the record of conviction on it's not on its own would not have supported a finding of remove ability no legal education who has limited education in this country and who needs to speak through an interpreter could not be expected to answer as to a legal opinion as to whether his utah conviction rendered him deportable under the i and a specifically you talk about seventy six desh for death one o one is a generally applicable attempts statute it has a separate and distinct elements from actual possession it resides in a different portion of the  the regulation of the state related to a controlled substance why isn't that one does not answer our question your honour's the law twelve twenty seven specifically says that the law must be relating to a controlled substance it's not that the attempt or conspiracy must be related to a controlled substance it is that the law the statute of conviction must relate to a controlled substance in this case mr wrenn done or at least the record of conviction only shows that he was convicted under the generally applicable client your honour's that's not the law that congress gave us congress gave us a law that specifically identifies violations of laws that relate to a controlled so what's what are we supposed to with up with a parent that is the parent that nichole applies to laws conspiracies and attempts to violate the laws relates to a controlled substance ultimately even if this court were to conclude that there was a sufficient record to support petitioners  do your argument as the cause because utah's controlled substances law is found in part fifty eight and it attempts provision it found a different part of the code that therefore conviction of attempts to violate a control the possession of controlled substance cannot be a controlled substance violation in this case no your honor but mr rendon or at least the record of conviction and specifically the abstract and judgment that the  state of utah has provided simply indicates that mr rendon was convicted under the intent statute the complaint actually crosses out the portion of the attempt to do something i temped in another self is not a crime that's correct your honor but in this case the record of conviction and again at this point in determining remove ability the burden is on the government to show by clear and convincing evidence that mr rendon this removable the record of conviction here does not support that and again illustrated by the that the charging document as a matter of course in the circuit under cases like tendulkar are accorded little little weight because they describe allegations and not the actual conduct to which efficient or pleaded guilty however if we look at page one forty nine we can see that it's unclear what the actual charges because it's been crossed out by hand you know it says attempt to possess the possession or use of cocaine your honour's there there is there is a handwritten  been a conviction of attempted illegal possession use of a controlled substance ultimately if the court looks in addition to the actual categorical match between this utah statute and the offenses that are considered controlled substances offenses this conduct described the same type of conduct the court ok let me understand the logic of your position here you're saying  technically the the judgment does not state what he was convicted of attempting to do that the record is inadequate and that the fact that conviction nearly identical to this one was insufficient to find in eligibility for cancellation the removal there were two documents in the record of fiction in stand while the other there was a charging document and an abstract of judgment in both cases in this case and in stand of all the charging document and the journal entry of judgment attempted to divorce or derive a title to the charge from the actual text of the statute because the statute in sand of all who much like the statute in run done is has limited education he does not speak the language he was not represented by counsel and the fact that he was asked by the i j that number one whether he agreed legally that  arguments that were making now before this court i however under the jurisprudence in ye and le bron his claims would be preserved your honour's if there's no further questions i'd like to reserve some ineligible for cancellation or removal was again based on the improper consideration of mr wrenn don's testimony specifically the record at pages one ten to one thirteen there is a point at page one twelve where mr wrenn dunn says i don't the what's the problem with the kansas what's the problem of the kansas conviction again that the record of conviction in this case only indicates that mr wrenn dawn was was convicted under kansas statute sixty five forty one sixty three that statute criminalizes conduct that is considered an aggravated felony as well as conduct that does not constitute an aggravated felony without more information in this case we cannot determine whether mr wrenn dawn was  evidence on what the nature of this is your honor ideally mr rendon has been in prison for two years not because he committed any crime but simply because the process here was not adhere to specifically the  be improperly considered as testimony and then on appeal he's been imprisoned at the detention center mr rendon should in fact be set free and should the government decide that it wants to pursue this then it can certainly initiate proceedings however from our well that may make it may resume the proceedings to try to try to remove petitioner however we don't feel that there is a sufficient record of conviction our record of conviction here to ok thank you thank you that mr rendon did not sufficiently exhaust his challenge to remove the ability as the court noted he was represented by counsel before the board and the board at page three of the record explicitly noted that petitioner raise offense that these documents were insufficient these are all very specific claims that could have and should have been raised to the board in the first instance because the board was well within its purview to address these arguments and if necessary find th sufficient and was supported by the record evidence most the court has any more questions about remove ability i am not going to address the petitioners argument about attempts and the specific arguments that he raises because again those arguments were not present to the agency in the first instance it's outside of the court's jurisdiction to consider them now i would like to move on to the second prong of this case which involves the relief component and again here's where it might seem a bit confusing we have the t two page analysis of the claims that the council did in fact raise to the board and the council below did raise a challenge to the agency's finding that that petition was not eligible for any of the forms of that he sought and the major basis for that was this kansas conviction from one nine hundred ninety seven now as this court has found and that's not in dispute the burden then shifts to petitioner because he used the applicant for a week the burden is on him to prove that the eligibility for relief here the burden is on particular to show that for cancellation of removal and for asylum that he had not been convicted of aggravated felony and here he did testify that he had an additional controlled substance conviction one nine hundred ninety seven there was a back and forth in the record i believe pages one ten through one fourteen which was mentioned by opposing counsel as far as the actual nature of what this conviction was hailed although the burden was here we have the conviction documents in the record at pages one thirty eight to one forty three and also again confirmed by the f b i rap sheet which is that page one sixty three the petitioner was in fact convicted of possession with intent to sell marijuana  judgment both indicate not just the statutory section which is a broad overarching disjunctive statute here we have specifically in both the complaint and in the journal entry of judgment that mr brennan was in fact convicted of possession with intent to sell marijuana and that he was in fact imprisoned and given probation for this offense and our brains we set forth our position on possession with intent to sell doesn't compassed attracti fence that's rather rendering it aggravated felony for in this case eligible purposes it was not the government's burden to prove by clear and convincing evidence that this constituted an aggravated felony for removal purposes that burden was  allegation of any sort of improper hearing either with any translator issues or any sum any denial of right to counsel and as noted earlier mr brennan was given three opportunities to pursue an attorney legal representation chose not to do so there was no allegation that there was any sort of improper translation with the translator or the interpreter no allegation of that sort was made so to the extent that those allegations are coming to light here on appeal i would just note that they they are procedural due process claims that the board is well within his purview to address in the first instance and should not be issues on appeal here today if the court has no further questions i believe i would rest on our briefs i would just say that that on that secondly the decision with regard to the kansas conviction was only reached once the decision the petitioner was removable was made and appropriately by considering his testimony should because that testimony was improperly considered the analysis of regarding the kansas conviction