they please the court joseph rayna for the respondent arguing for the place of brian bates either the petitioner must have admitted it is qualifying controlled substance oftens which he has not or he must have been convicted of one unlike other subsections of the statute that is at issue eleven eighty two a subsection a two capital a does not render an applicant in at miscible on the basis of suggestions or of information or even evidence that comes up short of a conviction the government would have this court construed this subsection  ground of inadmissibility as if its language were the same as that contained in subsection eleven eighty two a to c which for example renders inadmissible an individual who the government has reason to believe has been a trafficker and controlled substances reason to believe is not the standard either the applicant must have made admission or he must have been convicted of an  actually disqualifies him or did he plead guilty there is no indication that he pleaded guilty or to a disqualifying controlled substance all things we have  available and all of them have been furnished unlike for example in all monza whether the respondent was convicted in and then died of the offense or it was a summary conviction under canadian wall in addition to that we also cannot determine the the meaning of this pardon and what what it meant to have paid a what really was a nominal fine so i don't give out the documentation the that was done to answer her honest question and the result was that a record of a document was received after the record was closed that is not at all illuminating it does not indicate anything any different from what is already in the record of proceedings because it doesn't say what crime he was pardoned if it does not if it states that there that they cannot that the authorities the royal canadian mounted police was unable to want to cover records relating to the alleged conviction what about the pardon but it unfortunately it's not it doesn't letter which says that it's sort of in lieu of the pardon it's a letter that an actual not an official cord injury but it's a letter from the canadian government and that's what what the pardon information is based on other than his testimony that will that that is correct and i'm i'm i'm glad judge that that's come up because the immigration and nationality act the statute itself specifies five types of documents that can be used to establish evidence a conviction and there hasn't even been a suggestion in this case that any of the documents that exist actually qualify as any of those five types of documents and so the for for that reason in addition to the fact that there is not a a conviction that th modified by the real i d act calls on the alien to produce evidence and come forward with evidence the burden does actually states that the alien must prove that he is eligible that he meets the eligibility requirements and that he and i are warrants or deserves a favorable exercise of discretion the the language of the real i d act does not specifically state that and an applicant must disprove every ground of an in this ability so what i mean by that is for example an applicant for adjustment of status such as the petitioner mr lee must demonstrate that he entered the united states lawfully or he cannot apply for adjustment of status that he's an immigrant visa is immediately available to him and certain other requirements he must for a while a medical examination he must pay the fee that accompanies the application for it to be considered however he the no court has indicated ever specifically the real idea act extends to a requirement that the and fortunately brought up a potential problem during his own testimony and so while you wouldn't have to in the abstract prove disprove every possible ground to get it once it the court becomes all over the immigration judge becomes on notice that there is a potential problem then he would have to disprove bad and that's what what that's what the problem is in this case because he's the one who raised the problem and i'm so that can you can you help us with that well i believe so judge at least a certain hope so i put it to answer her honest question  i understand the record the applicant sought adjustment of status and on several occasions no impediment to his adjustment was ever uncovered i had a hearing counsel for the for immigration and customs enforcement at one point raised whether he might be inadmissible over a potential drug conviction at that point the respondent then gave testimony which incidentally the immigration judge found to be credible in every respect that's actually bad though because this testimony is that he was trafficking and that's the word he use i understand his testimony to be that he had given someone a variety of put someone up who ultimately was may have been convicted of a controlled substance  even if the respondent were convicted if even if we were to assume that he was convicted of a controlled substance softens the statute requires a little more than that he must have been convicted of violating a statute or regulation relating to a controlled substance as that term is defined in section one of two one zero two of the controlled substances act and we don't because the record is essentially unavailable there's nothing more that can be produced and there's nothing more that can be uncovered there is no way to determine to know if he possessed a  even had or violated a law relating to what is classified as a controlled substance so why isn't that a disadvantage for you also because if we were dealing with whether the modified categorical approach a clod or even the categorical approach though even in the criminal case that we would have routine we have all the time the defense lawyer there to pella it comes to us and says this statute doesn't break down correctly and therefore we win and they do that all the time you can't come to us with the statute and say it doesn't break down because you don't have a statute we don't have the criminal statute but we also don't have conclusive evidence of a conviction and under the analysis of the supreme court in moncrief there has to be a conviction that necessarily makes the respondent or additional for this court in admissible to the united states otherwise this statute would read just like the statute that allows the government to exclude an individual on the basis of a reason to believe what we have at best is a reason to believe and when congress uses joins as th  court has indicated many times in one place but does not use them in another courts ascribe a meaning and they give effect to the difference in that language otherwise they were that this individual and many millions perhaps could be excluded on the basis of a reason to believe without a conviction and he either was convicted of a qualifying offense or or he was not and even the evidence of some conviction is his vision to establish categorically that he was convicted of an offense within subsection of the within the definition of one zero two of the controlled substances act are you harmed that have martina because under that case the office of conviction is a fact of the terminates not a legal one and so if they determine that there's been a conviction i mean you can still argue the legal point it's not the right conviction that were to say there's not a conviction here don't you have a but it appears that the respondent that the petitioner was convicted of something it certainly can appear that way to very reasonable minds however would still do not know if it was a summary conviction or if it offense we don't have records we don't know if he was convicted of possessing a substance that is included in the definition of our controlled substance act so we can establish that he has a conviction that is disqualifying i'm not concerned as much about basque is because i believe and i think this court should conclude that the question whether he has a conviction for an elephant's violet's of of the controlled substance act is a legal issue he either has to have a conviction or he does not actually he's produced everything he's put he's testified to what occurred what we cannot some ways is an impossible burden is whether his conviction reaches the controlled substance act and whether therefore he should be disqualified if you are correct and we can't know that and he still be and we still a farm on the issue related to the to him not having the continuous presence of the proper presen the i don't believe those grounds apply the the issue raised by the government applies to individuals other than an alien who is an immediate relative as defined in the act in this case because the responde spouse is a citizen of the united states disqualifications for example such as unlawful employment in the united states or having injured on a visa waiver under section two seventeen do not apply though they would in normal in other  so there's no other great therapy when you win and i would like just to say that there's only one case relied on by the board and it's one essentially one paragraph single member opinion and that's all monza which under moncrief government slags conviction but granted him a temporary waiver so he was allowed to be admitted for a temporary time so that the conviction was always has always been a part of this case and he's always been on notice of that conviction and that was in two thousand and two he outside of removal proceedings he attempted to pursue adjustment of status that's in two thousand five it was denied in two thousand second on the basis of this conviction and subsequent to that application was duly sought a part and that's from that dates from nineteen two thousand and two when mr lee first saw the mission so there were so that was the proof that was in there and then there's also from the kenyan government i believe that it says in shorthand possession asked about documents and right you had said did we warn and the question was whether you know we had shepard like documents or not or what do we have meant to what extent you know can we rely on generated in canada that has his fingerprints on the second page identified as a picture of the petitioner got a second page that says criminal convictions conditional and absolute discharges and related information and then there's what appears to be  wrong what if the record is in big us says to whether the crime was indeed that being a minor thing that he pled to whereas maybe he was charged with trafficking as his testimony says but that he pled down to something how does that cut in when the when congress codified the burden of proof on a two forty four this was subsequent to the adjustment status that you know all discretion case that i did not see that i have francis which is a recent case it was before where again the person that issue in that case was we don't really know if this person was convicted of an aggravated felony or not but because he was pursuing release he could not show that he was eligible for the wasn't cited which it was subsequent to our briefs and it was on public but i can give you it's given it to the other side if you're going to talk about it i show by the poncy evidence that you're eligible here we do know that someone regardless of the fine if you're convicted of a of a controlled substance offense you're not admissible and so when mr leask showed up at the united states border in two thousand and two they said you were not eligible for admission and that's it centrally what adjustment is adjustment treats the person as if they're they're entering at the border because historically that's actually all adjustment applicants had to go back to the border and so we're treating him as if he's showing up asking to come into the united states and at that point with foreign conditions in particular it's very hard for the united states government to know what went on which is why congress decided to put the burger at the applicant's feet to show when you're trying to be admitted into this country that you do not have disqualifying convictions you know  pardon the canadian government told mr laid if you would like the documents related to your conviction let us know in fact i think that you can set send us an e mail if not we'll we're going to destroy th he didn't do anything to to obtain those vital documents to meet his burden of proof although they were offered to him in and in this situation there's no way to show that he could the yes and they did it take to get up being carried in his pocket from then on and that's why that the theme i'm trying to convey is this is a this condition wasn't sprung on him in removal proceedings he knew at that at the doorstep when he came in he knew when he applied for adjustment he knew when he was pardoned and then he knew in removal proceedings that this conviction is there it's you know you need to show us that that didn't exist or it was the reason the board has as developed the burden of proof case law is that in the first case that i sent twenty jailer if if if if they cannot produce things if applicants for relief and simply sa i'm not going to produce documentation but i when it throws the burden of proof issue on its head because of course if this was a if the government further burden of proof in this case to be quite different and and that we all know that the i think we've got your argument  and found that moncrief abrogated the earlier decision in young the salem case mentioned by my colleague is an apis it because  an immigration judge had already determined that the particular permanent resident at issue there was in the ad miscible or deportable and he was seeking a waiver of inadmissibility and the waiver of than in this ability required demonstration of certain statutory requirements of mere eligibility to to be able to be heard on the waiver at all and they were that he not have been convicted of an aggravated felony that he have been a permanent resident for at least five years and that at least seven years have passed since his admission to the united states before commission of the all things that triggered his deport ability ability and without making a prima fascia showing that those three requirements are satisfied an applicant who is a permanent resident cannot seek cancellation of removal now in salem it was over an aggravated felony but it's an opposite because there is in admissibility or deport ability had already been determined this case is about whether mr lee is there's sufficient documentary evidence that mr lee is inadmissible at record and we're going to have to pick sides that right yes i think i would say so judge depending to some extent on hollow the opening in ultimately is is written again i don't believe that any of the other cases and the first circuit case in particular actually involves reliance on some extension of the real id to desc bing the negative the the problem with this case is that this man whose wife is a us citizen has there's a there's a record there's some document that states from the canadian authori that they can't find a record of conviction and then there's a part of the document and it certainly if the state if the requirement of the legal test were reason to believe perhaps one could conclude is inadmissible but we don't have the conclusive evidence and the question is if he can't disprove a negative once it has been suggested that he has or may have a controlled substance conviction for a substance listed in our controlled substance act does judge with all due respect i believe that the respondent despite the fact that of course he probably could remember his arrest and was on notice in that sense he likely was misled by the fact that earlier no impediment to his adjustment of status had been raised and and it was not until when he was in removal proceedings that this that he was that it was raised in court at that it was raised in two thousand and two according to open opposing counsel that he had to get the temporary waiver so it was raised instantly when he was coming into the country yes i appreciate her on her mentioning that because it reminds me to make a point and that is that it was raised but the fact that the agency believed he needed a waiver but the fact that officers at the border believed he needed a waiver does not mean that he was actually convicted and granting him a waiver it cannot