this case comes before your honor's from a order of the board of immigration appeals of sustaining an appeal by the government by v h s on the immigration judges  the second issue before this court which is the most important issue it's the issue i think there needs to be addressed before we even reach the categories asian of that conviction is the respondents or the burden of proof in this case now when the government charged mr who your as removable from the united states the initially charged him as removeable as an aggravated felon under twelve twenty seven eight to a triple i the government claimed that mr liu i was an aggravated felon by virtue of that conviction and certain documents were brought forward at that time by the government in order to prove their burden of clear and convincing evidence i don't believe that there's any argument that the government would not bear the burden in remove ability cases especially in legal permanent resident cases then he can say he only conceded remove ability asked to be additionally lodged charge which was the charge under twelve twenty seven eight to be i and that is a conviction in violation of any controlled substance violation but not of that's a really important point your honor mr all you know out was the prevailing party before the immigration judge and i think that's a really important fact in this case because the immigration judge yes the b s a reversed  charge for the controlled substance violation the controlled substance violation mr your i'd made it that charge he did not contest the charge but continued to contest from the beginning that it was an aggravated felony so he always contested that charge the immigration judge first immigration judge in miami did not sustain the charge and then when it was remanded back and it was before individual before the judge in orlando he also did not sustain the charge now the government in their brief does concede that the charge the immigration judge did not sustain that charge of him of ability in other words the charge of aggravated felony and the board did not disrupt it so we go to burden of proof your argument is well the government had to prove that charge by clear and convincing evidence and that charge is still there the government could have withdrawn that charge there's nothing the precludes the government from amending a notice or from withdrawing a charge of remove ability and yet that charge remains on against mr o your so it's still there and it was never withdrawn by the government then we're saying it's still at issue  there was nothing for him to wait he wasn't the appealing part and so that's why throughout his brief mr all your continues to argue that if the government failed to prove that he was an aggravated felony for purposes of his the charge of remove ability then that same finding has to also go into the of the burden of proof for purposes of his application for relief we're of the cancellation stage are we not we are ron so what happened did he or did he not satisfy that burden well your honor we believe that he did and the fact finder agreed and that's our argument had to be i determined well the immigration judge made error of fact or law immigration judge you did not have sufficient evidence in order to make this decision when i look at the in the burden or in the burden to look at the state charging his burden to establish that he's eligible for cancellation of removal where he meets that burden is to look at the state charging documents to determine what the elements of aggravated felony are and th just came out of the first circuit and that's so say that and that says well if all the sharper documents have been filed and it's still ambiguous and it still cannot be determined then it falls in favor of the applicant because to prove by a preponderance of the evidence and he has brought forward all the documents had let's say he brings all the documents forward everything that's in existence and every document in existence is on the record and it still cannot be preponderance of the evidence i understand that but if he can't show that it was not aggravated he he loses under the statute well we defer to the decision and moncrief your honor the decision among crieff well to which we responded shows that this should be canceled and so so they placed the burden on the non citizen to make that showing if he doesn't make that showing the default rule to the parties on july twenty three two thousand and thirteen granting them additional time to provide any other part of the record of the conviction that could clarify under which prong he was convicted  mr francisco was never ordered to provide additional evidence the documents in fact he relied on the immigration judge a determination that the additional evidence was require you're in effect conceding that for purposes of cancellation of removal nothing was provide the burden one character of your letter kind of complains that you ought to have an opportunity to prove something you haven't proven yes your honor in our letter we do say that and that is because mr oriel has requested every man that was one of the things that has been requested in his arguments to this court and what would you produce and remain well your honor it's interesting to note that the b i really doesn't know what part of the record is missing but as a practical didn't get to the bottom of that how does that affect this case i believe affects this case because the government is arguing that the the which is the least capable activity is not applicable in this case because it's a cancellation case verses of a case for remove ability case in other words a we're not arguing the remove ability we're arguing the the respondents or we're arguing cancellation of removal because of the fact that the statutory hook is convicted of and therefore if he was not if the government cannot pay or could not provide evidence by clear and convincing evidence that he was  cohen good morning your honors may please the court you did you come in on behalf of the respondent i'd like to discuss three things with you this morning the first is burden of proof on alien for discretionary relief the second is the agency's application of the categorical approach and the third is the issue of moncrief and it's a non applicability to this case first and foremost we can all agree there is no dispute that mr francisco was convicted of drug trafficking under florida law to address a point made by counsel i would like to note that is the burden on the government to demonstrate remove ability but demonstration of remove ability on one ground is enough we all agree with that mr francisco's removeable as an alien convicted of the violation of relating to a controlled substance so the fact that the government was unable to sustain its burden with respect to the aggravated felony charge of remove ability does not mean that the government bears any burden in the context of discretion or relief in fact that leads me to my first point and that is that mr francisco bore the burden to demonstrate eligibility for relief from removal the statute is quite clear section two forty c four of the immigration and nationality act provides that it's the burden of the alien to demonstrate meets all applicable eligibility requirements and the regulations go even further indicating that if one or more of the grounds of minutes or denial of the application for relief may apply and the alien shall have the burden to prove by a preponderance of the evidence that such grounds do not apply now in applying this to mr francisco's case the board properly applied the dictates of the categorical approach which begin by comparing the elements of the statute of conviction with the elements of the so called generic crime of the so called modified categorical approach which permits consideration of certain conviction documents when the statute of conviction lists multiple alternative elements such the effectively creates several different crimes and in applying the modified categorical approach the court or the agency can consider a limited set of documents that can be used as a tool to help determine which of the alternative elements the alien was convicted under and these documents include the judgment  determining which alternative element and ilene or individual has been convicted under when you have a divisible statute such as this statute and we also follow the twenty letter regarding the case of spa which is  it's uncertain because of the discussion between what is the what good is to say that that that would help if we don't have it it in fact may not help at all the point is merely to say that this was just out of that information i'm sorry you're just telling us that that's all i'm just saying that it's a document that could have been presented by mr francis available it may or may not be available and that's the point here it's a good editor of a document that that's relevant yes yes absolutely the burden the burden was on mr francisco at all times to present any and all documents he wished to show that he was convicted under one of the alternative elements of the statute of conviction which is not an aggravated felony he never presented that type of document it may or may not have helped him he relied in the immigration court proceedings upon a police report in the record but now police report is not judicially noticeable under shepherd of the supreme court case which addressed which documents may be considered under the modified categorical approach agency considered all of the documents and said we can't look at the police report but even if we did you lose because if you in fact were convicted of purchase of cocaine which is what the police report shows that's illicit trafficking but of course we're not going to look at that we're only going to look at the judgment and the information those are inconclusive and because of the burden of proof in the statute you lose now several other courts have reached that same conclusion the fourth circuit has concluded for example that fidelity to the ion a requires that the non citizen as a party bearing the burden of proof suffer the detriment in a case like this where the statute of conviction is divisible such that we don't know which of the alternative elements the alien was convicted under and the record of conviction is inconclusive the plain language of the statute dictates that result the third the fifth the seventh the ninth the tenth have you the ruled exactly the same or issued rulings that are consistent with that reasoning and that's what we're asking th court to do today now to address moncrief i see that my time is quickly coming to an end i want to explain why moncrief is not relevant to the decision in this particular case so now is your honour's already indicated moncrief is a case  remove ability not about relief from the so this is the first of distinction the supreme court had no cajun and moncrief to consider the aliens burden for an application for relief but perhaps more importantly unlike this case which involves application of the modified categorical approach moncrief was confined to application of the categorical approach so in read on the ninth circuit explained it well they explained that a defendant has been convicted of an indivisible statute as necessarily committed one crime  the visible punish is a broader range of conduct than the general generic crime it's never possible for that conviction to qualify as an aggravated felony that's the categorical approach but now we understand that ok so in modified categor the non citizen isn't that the point that is if it's inconclusive on the under inclusive non citizen wins why isn't dad broad rule applicable here this was the point i was trying to get at in the categorical approach when we only look at the statute of conviction and the generic crime elements of both of those the the rule of decision is going to dictate that if the government has not met its burden for movability the  n also meets his burden for relief if we're just looking at these two different sets of elements the case is not the same in the modified categorical context and that's because we can also look at these judicially noticeable documents under shepherd there can be a situation like this one which is perhaps it's anomalous in a way where the government doesn't meet its own burden but yet the alien doesn't meet his burden either because the government's burden is to demonstrate by clear and convincing ruled for the for the for the for the it for the area on the ground that you had met but the immigration judge let's be clear the first decision in this case issued by the agency was a decision by the immigration judge the statute of conviction categorically is an aggravated felony and so mr francisco was on notice from the beginning that he may be found removeable it was only later after the board of immigration appeals remanded the case back to the immigration this was a pendulum there was swimming swinging back and forth and at all times mr francisco knew that that's irrelevant for the for the for the cancellation of remove ability in which the petitioner have the burden to prove yeah that's right one and that the immigration judge was merely determining that the government didn't meet its burden not that he had not been convicted of an aggravated felony simply that the government had met his burden so in this case your honour's if you have no additional questions we would ask that you join sr circuits a conclude that when there is a divisible statute an inconclusive record pursuant to the plain language of of the statute doesn't meet its burden and that was the case here with mr francisco in his application for cancellation of removal thank you thank you very much their work there were documents that were filed on the record and these were documents were filed by by the government in order to prove by clear and convincing evidence that he was an aggravated felony now i understand that but that's because in other words they're just they happened to be  proven on this issue of cancellation of the believe that he's proved his element he's proved that he's been a resident he was a resident for five years he proved that he was had continuous physical presence for seven years he proved as a matter of discretion that he was worthy of of a grant of consolation and none of those three points were argued by the government they conceded that it would be proved that he has not been convicted of any and read well your honor we believe that he has met his burden by a ayalon has argued in the alternative this issue of the missing document was not brought to the attention of the potential of the petitioner mr your until the day of the individual this is a gentleman that was detained for quite a long time and the immigration judge states on the record well we need to resolve this case today because he's been detained for quite a long time and the immigration judge was bound to make a decision within a certain prescribe time period and therefore the  comfort on the high j's ruling it's even though the i j a made a mistake is time to i would not i would not categorize that as comfort your honor i would categorize that as not on notice that's why i would categorize that but he could have and in support of his application for cancellation of removal gone forward and shown that he was not convicted of aggravated but his argument was that the documents on the record were sufficient that was the argument which is which of what would documents in the record it was the it was the judgment of pleasure on their record in the document in infile where the information the information only relisted exactly the same  the same language as the statute there was the judgment the sentence the charging document the punished code scoresheet the order of supervision and the memorandum of costs those are the same documents it which the