and this case congress obviously decided that people that were sentenced to five years will you know have the carthaginian result they will never be able to bring their withholding  that presumes that the sentencing judge looked at this a very the case the depth of the defense involvement and made a nuanced judgment in this case that's didn't happen basically what the court did was they did an indeterminate sen of the minimum and the maximum then impose no time at all the entire case took about six or seven months the first amended complaint the first complaint was in february or an amended complaint in july judgment was a pember live in two thousand and twelve thirty six days later he was before the i g so clearly this is an example where there was no the judge did not say i'm looking at the severity of the case and mak sentenced you to five years i mean what he did in this case i'm a little bit out of my league nevada's a little different in california but in california when there's a possibility of state prison and the defendant is granted probation what they do is imposition of sentence to spend it the entire possibility of state prison and then they given probation and then grant a county jail sentence in this case we can say that the judge that did this case at the for tickler facts of the case and decided this defendant deserved five years quite the contrary in fact he's obviously the plan was just to simply suspend all imposition of sentence and he basically got probation so i mean there is a real disconnect between congress's intent to say the worst of the worst people ever since the five years for this a very the crime the depth of their involvement perhaps their prior convictions that didn't happen here i mean this is one of the problems when you've got the sense in criminal sensing schemes of fifty states and trying to fit it into one federal definition and so i mean i guess i would say to some extent some of the cases that deal with the indeterminate sentence and you pick the highest right now i would say ask me how do you  to up to five years it's the same an r s one nine three one thirty c and they gave him twelve to thirty two did not give him the full amount here the judge simply said i'm sensing you to the minimum and the maximum there's no sense of the resenting nuance judgment here so i guess part of my argue would be you know in criminal law that is different in this immigration asylum should be different the idea that someone who essentially received incredible leniency from the sensing judge has denied the opportunity to resent withholding which to be a is called as a life or death consequences so i think i mean those other cases that deal with the interminable act of are escobar and they did not occur in this context the sentencing in the withholding of removal preclusion context and i think if you look at this case again the idea that this is you know the about the harsher sanction you can get in terms of asylum of the holding you just simply can't bring it and that clearly does not appear cases so i think it's going to be remanded to number one there is nothing you know all we have here is an amended complaint and the judgment nothing more nothing less and we have no idea what you know one of the bitter ironies in this case is that if it's not per se particularly serious one of the factors that the i g looks at is the sense in decisions right here if we were in the per se way and you know the judge showed extraordinary venue and some potential evidence supports the denial of cata for all with respect to the particular serious crime determination petitioner has not demonstrated that his what he concedes to be an aggravated felony is not a person a particularly serious crime he was sentenced to an indeterminate sentence of twenty four to sixty months which is five years and when you get to that five years that is a per se particularly serious crime and we're dealing with an aggravated felony ok consistent with our discussion in the last case why shouldn't we look beyond the conviction to what the court actually did under state law because we have the determination that this is a per se particularly serious crime in there and that that is within the the realm of what congress can decide and what the board can decide is that when somebody has a sentence of five years or more for an aggravated felony that is by law and particularly serious crime we don't get into the into the underlying facts of the crime what what the sentencing would be under state law state law applies when we as we argue here in our brief when you look at nevada state law they are he's eligible for parole at the minimum but if he doesn't if he's in when he's not parole  it is the maximum which gets him up to the five years so that's consistent with the concern with the consideration that for the indeterminate sentence it's considered to be for the maximum penalty for immigration purposes would you agree that we should look to nevada law i think that's consistent with the way that this court has treated it and it's the way it consistent with the way that the board has treated in the past i don't know if it's necessary but that has happened in the past we know that in our brief there's more decisions looking to massachusetts law arizona law i believe as well for that determination but i would note that we are in the context here of relief from removal so it's petitioners burden to show that this is not a particularly serious crime and he has not at any time when into anything in about a state law that would say this is not a particularly serious crime this indeterminate sentence cannot be considered for the maximum amount that's his burden he did not meet that he did not try to meet that but what the agency  and again the court is laborde is long held that a suspended sentence there is argument with respect to whether his suspended sentence counts and that's immaterial for immigration purposes that counts and the to terminate sentence should go to the maximum of five years time that the hearing occurred within which to prepare he chose to switch attorneys three weeks before two weeks before the hearing there's no indication that any evidence that is material was not submitted there's no indication that with the hearing and if the case was continued that would just delay the process for somebody who admittedly is an aggravated felony priority with respect to the venue change the same considerations apply you know the i j a was ready to go there was no reason to change venue petition it was in the courtroom petitioners counsel was appearing by telephone there was scant evidence that petitioner was actually residing in san francisco as opposed to reno nevada and again the case had been been pending for a year within which prepare and he didn't move to change venue until right before it change of venue to the san francisco court it would have gone it we've gone back into the line for another master calendar hearing and another merits hearing delaying the process even f r there's no indication that petitioner was prejudiced by the denial of the motion to change venue with respect to the deferral of removal under the cat there's no compelling evidence in the record that this individual is going to be tortured in mexico there's definitely evidence that petitioner suffered a very unfortunate circumstances over twenty years ago in the past there's no indication that that individual is going to seek him out that the objective evidence in the records suggests that there is some freedom among the community of homosexual males in mexico that they can live openly and freely in fact petitioners own submitted evidence indicates that that is the case that there are pockets of problems yes but that the situation is getting better there is nothing to indicate that more likely than not he will be tortured in mexico or any further questions thank you very much basically the prejudice wasn't so much to the petitioner as to me i was retained twelve days before the hearing there would have been there was no particular precious except time the general was out of custody to the critter the service us be positive they had him out i would have done things very differently i mean in terms of mexico the homophobia of the gangs is considerably worse i submitted some evidence of extradition killings despite you know any cosmetic legislative changes the malignancy of homophobia mexico still exists i never had a chance to do that again i was twelve days before i really had a chance to work with them the i j a on page ninety two offered to conduct a direct examination himself my concern is if this was my fee with the judge i mean i was simply wasn't there was prejudice to me no particular pressures of the court we understand time is important but in something of this magnitude i think the i j a abuse