please court your honor herrera was convicted of simple possession of controlled substance under n r s four fifty three point three thirty six an e felony he was not convicted of a category c felony under  fifty three point three thirty nine there is not a single mention of three thirty nine anywhere in the ministry of record d h s s made no mention of three thirty nine to either the i j a or the b i say all sentences  suspended and probation ordered for all effed twenty convictions pursuant to n r s one ninety three point one thirty and that is precisely what happened here in this case at page two thirty eight of the administrative record  fifty three point three thirty nine is not relevant to this case but elements of simple possession of a controlled substance do not bring it within the ambit of a particularly serious crime the elements of simple possession that my client was convicted of do not include an intent to sell distribute transport or manufacture of there's not even an element of use there is no element in that statute providing for harm or threat of harm to either person or property and sense simple possession is per se not a particularly serious crime no further analysis is relevant pursuant to the v i i as opinion in matter of in a m at page three forty that opinion which was issued by the b i a in two thousand and seven even if the court the even if the the agency were to get past that somehow and reach the particular and circumstances of this offense the agency did not give any consideration to the fact that herrera did no harm to person or property this is a highly favorable factor appropriate to analyse an analysis of whether herrera committed a crime which makes him a danger to the community it was an error for the agency not to have considered this factor  asked to deferral of removal under the convention against torture there was no adverse credibility and determination made by the i j a which means that there is a result of a presumption on that's right and you the administrate of record as far as l ron goes all we have in the administrative record is the testimony of herrera and what he said so returning him back to be particularly serious offense our case law basically hasn't taken a strictly elemental croce to that and as i read and i am the b s a a decision that's most relevant if it's talks of potentially coming in with then and what do you what do you think that the how would you construe that well the case also says that these have to be looked at on a case by case basis and it's hard to make a bright line rules because you don't know what's going to be coming down the pipe but i would look at what's not included first you have to look at the elements of the offense that he was actually convicted of and then looking at those elements is there an element that shows harm or threat to harm a person or property you know that bar here is supposedly all about whether the person is criminal conviction in the past makes him a danger to the community now and that danger to the community over the years has been subsumed into the particularly serious crime analysis but in the case law in the in the case of life said that it's more likely that that that it would be a particularly serious crime if there was an element of threat of harm to a person but that it's also possible there could be a particularly serious crime if there is some sort of threat of harm t properly but here looking at what he was actually convicted of there's neither this neither of those but i gather your your position is you look at the elements and then that's it you don't look beyond the elements if you don't get to stage one well that if if the elements don't provide a basis for believing that this crime falls within the ambit within the range of particular serious crimes in the b i said and matter in am and that's that's as far as you go so they were told the fact that it's one hundred fifty pounds of marijuana which is certainly more than what you would consider to be a user quantity doesn't play a role in your view we don't get there we don't get there because he didn't he didn't plead or he wasn't convicted of a certain he wasn't weight was it what were the circumstances how to get there so on and so forth we only get there if the offense in question falls within the range and the offense that he was convicted of does not that statute because it doesn't involve graphic card trafficking how do you square that with our case law where we said for example that the fact that these elements don't include mens rea are doesn't matter in terms of its potential to be a particularly serious crime so whether there was intent or not i don't know that you know i think what our case law basically said in a different context was that the objection in that particular case was there was no m rea a requirement therefore it can't be a particularly serious offense and we said no we don't we don't we don't necessarily look at that and here it would seem to me that if we get beyond possession because it has as judge as ross says this is a lot of large quantity and there were guns found if you get beyond that the question of pure statutory application don't you lose whether we lose or not would depend on it would be up to the agency to decide whether we lose or not if we go past the  statutory analysis and we're analyzing the particular circumstances of the crime and even there would need to be remanded because they did not take into consideration the lack of harm to person or property that's an important factor that should have been considered by the agency and if they're going to get that far in evaluating whether herrera was convicted of a particularly serious crime against torture with respect to the police serious crime determination i'd like to emphasize at the outset here that and i am does not require a strictly elemental approach i'd point out that i am was issued in two thousand and seven which was far before the element versus means analysis sort of took on a life of its own in the past few years the decision is that this is within the board's discretion what the agency's discretion they look at these circumstances if it looks like this might be the type of crime that might be a particularly serious crime then they look beyond the statute and look to what the circumstances of that conviction more and that's the case here and we'll let you agree with we start with the offense ye agree and we start with the offense in the you know why does this particular statute qualify as one that potentially would qualify as a particularly serious offense and what is a possessory offense but there is no limit to the amount of substance that is possessed for a conviction  this and when we look at the penalty provisions we see that this punish is a significant amount of controlled substance far more than anybody can use for their personal use up to five thousand pounds through the reference out through the penalty provisions that's not a simple possessory offense that's what petitioner was doing was running a stash house and that is within the borders discretion within the agencies discretion to determine that those types of crimes are particularly serious crimes well in sort of it's interesting because i understand your analysis but then you have to get to the sentencing rather than the elements of the offense to get their country though if you take a strictly elemental approach even under a strictly elemental approach of this court were to say well you know we need to conduct a taylor shepard analysis here mathis tells us and i'm sorry but this is far beyond what's or you know it's from grieving but mathis tells us that where the statute provides different penalties for alternative elements or for alternative persons of the statute those are elements of the crime so this would be divisible down to substance and weight because we're talking about referencing out for one hundred fifty pounds of marijuana well actually that the provision is one hundred pounds to one thousand pounds i think is what that provision falls into but then it goes to five thousand pounds as well so those would be elements under that provision of mathis which says that you know when you have a different penalties those are different elements would you agree that th statute is not a drug trafficking statute you know it's a difficult determination to make because there again when you reference out to those large quantity provisions for the penalties that's listed under the nevada portion of drug trafficking and it goes to both the trafficking offense the sale and to the possession simple possession of a large quantities it treats them the same it's listed under that same trafficking in a controlled substance well and then i mean when we think of drug trafficking f generally we're talking about transportation possession with intent to sell distribution and and about a statute contains none of that it doesn't but i think when you get into large quantities like that there's a recognition that for example if you're running a stash  participating in this activity that that is in some way a participation in the drug trafficking and that's the case here he maintained the marijuana in his garage and grew plants in his backyard for profit knowing that this individual and he testified to this knowing that this individual was going to turn around and sell marijuana and asked for danger to the community it's inherent in drug offenses and the board has long held this that these are dangerous to the community at heart one thing that puzzled me about the i j a decision was that the i g a seemed to focus on and spent a lot of time on focusing on drug trafficking offenses and this didn't seem to fall within the classic you can use your analysis to get there but that's not what the i g did as far as i could tell i think the i j i think there's a again i think it's a bit of a participation in that drug trafficking and ever i think the i g looked at what was actually going on here the circumstances of the case and that's that's within their discretion to do and say look this is not one hundred fifty for your personal use this is one hundred fifty pounds to be sold elsewhere and that makes this a particularly serious crime and you would agree i think that violation of the statute is not it per se does not qualify percs a individuals can be tortured by all right tony and in mexico he doesn't know who all right tony is it was two years between the time of the threat and his hearing and he had heard nothing else from tone's friend and he doesn't know if the right tone is in i think the focus has to be on what was the alien actually convicted of what was he actually convicted of there is no evidence in the record that herrera was convicted of holding any particular weight there isn't now there's a great deal of testimony that go to the goes to the you know the facts and circumstances of what happened but again just going by the b i use own case law which were entitled to hold them to we don't get there we don't get there unless the crime that he was actually convicted of in this case simple possession of a drug on schedule one through five of an indeterminate amount that has not been prescribed by a doctor if that does not fall within the serious crime and i don't see how it could then that's the end of the analysis well that's the end of analysis are doesn't it really boil down to the discussion that chief judge thomas had with  opposing counsel as to whether the has the right to look at the individual circumstances your position is that they don't his position is that they do not not i'm not saying that they categorically don't i'm  saying that by their own case law that you know that the front test tube decision told us that what we need to do to analyze a particularly serious crime is look at the nature of the fence the sense imposed and the facts of the circumstances but it didn't tell us what order they're supposed to be fense that the alien was convicted of does not fall within the ambit of a particularly serious crime fittest per se not a particularly serious crime then the rest of it doesn't matter that the sentence doesn't matter the facts and circumstances doesn't matter