the next case on the calendar is my name is of the legal aid society here for the petitioner in this case this case involves a remove ability issue and also a relief issue i was going to start with the remove ability issue and that issue is whether congress is the statute that at issue here has set up a regime in which a non citizens remove ability and permanent ineligibility to reenter the united states could result from a drug conviction encompassing conduct that is no longer a federal crime at all we think that all the relevant statutory text here in all the relevant principles of statutory interpretation suggest that the answer that question is no the inquiry is not whether a conviction necessarily qualifies as a felony under the c my understanding your record correctly i guess what i would say to that your honor is that the conviction did qualifies federal as a felony and in the c s a at the time of the conviction and at the time of the initiation of the reason we're puzzling over this is is about that's correct or proceed so the parties agree here that under the categorical approach my client's conviction it makes sense to look at whether the conduct is criminal at the time of conviction at the time that it was done well because we're concerned about the person's state of mind cop ability so logically doesn't it make sense to look at what the state of the law was really when the conduct was convicted what was committed and closer to the time of conviction i disagree with that your honor i think it went removal proceedings are ongoing and someone is in pending removal proceedings the relevant inquiry should be does the conviction qualify as a hold out against the individual right that your honor i think presented a different kind of question so i think if i were arguing that case i would probably take the position that no it does not and the reason that case is different from this case is in that kind of case you would have a new law imposing nuclear consequences on a pass conviction in a way that harms the and you know that to the detriment of the individual that kind of circumstance but it would have  facto so i guess a few things about that your honor i think one and by its terms talks about the repeal of any statute i don't think they're biased what we have here is not the repeal of any statute i just think by its terms that's not applicable here and  zero nine also is talking about penalty is imposed as a result of such a violation which it's not clear to me that removal from the united states under the immigration act is in other words this isn't a sentence that goes with a crime that somebody committed the second one on nine speaks to the situation where somebody commits a crime does something it's against the law when he does it then the law is repealed and the question is can he still be prosecuted and sentenced for what he did before but that seems to me rather different question than the immigration consequences of i totally agree with that your honor i think it's a certainly a live question whether section one and i it's a liability in korean immigration laws i think i agree with i think we would take position if there were a repeal of a statute here which of course we don't at that it just doesn't apply to remove the proceedings at all yes the this  statute does speak in terms of a person becoming removable when he is convicted of a crime so in terms of the language when does someone convicted of a controlled substance offense become remov well i think in a case like this you know my client could have become removed removeable at the time of the conviction because at that at the time his conviction in compass conduct encompasses encompassed conduct that necessarily qualified as a felony under th necessarily encompassed a substance that what was at that time a section eight otoh so when he commits is crime when he's convicted of the crime in the first place he's removable as of that date under the statute so what what in the statute tells us that that status changes at some later point so that he's no longer removable i don't think it's necessary a question of that's that is changing your own i think it's what the immigration judge is looking at he's asking a question immigration judge is asking is this person removable now does has he been convicted and the answer might be yes he is because as of the moment that he incurred this conviction he became removable and nothing in the statute says he's no longer removable so he's removable but i guess i disagree with that i think quite a few things in the statute say that because the immigration judge is asking does this conviction encompass a controlled substance  are convicted right of a crime that is a controlled substance offense as defined in eight zero two and as of that date that's exactly what your client had done and what happened to him he's been convicted of a crime that you acknowledge was a crime under section eight zero two now he's removeable and you know i mean even at the later point the judge is asking is he removed will and the question is well he was convicted of such an offense and that made him removable now he's moved well you know what what's what's wrong with that logic well i think it's just a few things you have i think number one i think it's just not supported by the statutory text again the immigration judge is applying this language after a conviction has become final and the language is a controlled substance as defined and secondly i see your point as a policy matter if we put aside the the complications the curve balls thrown by the categorical approach suppose he was actually he actually had been convicted of distributing the locks a girl which now we think is sort of a good thing because it has helped the consequences for people opioid addicts and so we changed our minds but was a good thing or a bad thing under the government's logic too bad for him because we didn't think that at the time he committed his his crime and i can see the logic of the argument that as a policy matter we're not punished we're not deporting people because they defied the law because lots of crimes that people commit that are equally defiance of the law don't make you removable it's whether we think you're somebody who because of what you did should be removed and today at least my hypothetical the locks the goal seller is not someone who's done anything that we're concerned about anymore so it would seem odd and it's those we legalize marijuana it would be odd if the consequence of that was but anybody who was convicted of distributing marijuana back when that was a crime is now going to be removed because what a menace marijuana dealers are that would seem a very strange policy but i'm not sure that i follow your linguistic argument i agree with those consequences and i'll just make a few point again this  a now there's no backward looking language anywhere in that definition they have to read in it at the time of conviction sort of that that kind of for is implied that we don't think that's the most reasonable or even a reasonable reading of the l morning please the court this is damning kamler for the attorney general in this case the only question is whether joe was convicted of a felony under the controlled substances act the answer to that question is yes the statutory argument opposing counsel makes even and has brief he has to insert a word to actually make his statutory plain language argument work we also then have a wall a president from the board this court and the supreme court all doing the analysis at the time of conviction and in any of those cases did the immigrant in question raise the argument that it should have been done differently i'm not sure well i mean how do you know wall of precedent amounts to when for one reason or another nobody raised this issue it was assumed that it would go a certain way and so the doing in order to make it work he does that in his brief what word favorable but actually the court made a very and its analysis made sure that it got the time of conviction correct because there had been a change in the drug schedules two weeks of that conviction and that was part of the analysis so maybe it hasn't been raised this is considered a novel argument but certainly there have been cases where there are published decisions where there would have been a different outcome if you had not looked at the time conviction and courts have looked to that because i'm frankly that's what makes sense to a fixed point in time versus this future point whenever removal proceedings are commence which can also last many years instead of the time of the offense this was a felony there's no debate about that that this of the controlled substances act epically we were doing categorical approach the state statutes of the c s a we don't have that problem we have a similar problem the reason we have that problem when it's uncommon to have the problem when it's the federal statute under the state statutes the question is they have different drugs so what do we do with that and that comes up frequently it's not that common that we're dealing with the federal statute actually has different drugs at two different times well i believe that the c s a schedules because everyone those he's convicted of heroin and indeed if the statute were several years it seems to me you've got the judgment which is a shepherd document that would allow us to say he's convicted of heroin so we've got this that's what's really problematic but we do have the categorical approach and you agree and you argue that you agree that the categorical approach rather than the modified categorical approach is appropriate here well  approach that was our futility argument that even if you read man we know he's removable but is this is this an appropriate case for the modified categorical approach under it given that the conviction is of the one  that the fact that this drug has been legalized since doesn't matter because he was convicted of a controlled substance of plans back in the day when that was illegal that that's the government's position that's correct i don't know what it would take to get a felony conviction on that substance that's the other thing if he'd be convicted of a misdemeanor this would also be it would not be any so i don't even know if under the statute that's possible to have a felony conviction for i'm just on it as firmly without substance but yes i think that from a policy statutory and as i said we do believe that there's president especially with ferreyra because that also makes it not such a deep if you don't know the answer to that question which question the question of what how much moloch's a goal you would need to have a felony conviction i currently on a drug scandals and that there are a lot of it well would have needed right because what you're interested in is what the statute said back in the at the time when   cat relief the it's always hard distinguishing between a question of weighing the evidence and what we've said which is almost a kind of insufficiency standard that if the  the immigration judge does not address that the government itself in its five k one submission in the criminal case stated to the court that one reason mr doe deserved a break on his sentenc was that he was in a particularly does dangerous situation since all of his co defendants knew that he had been the cooperator because that information was disclosed in the criminal complaint how can we blithely say that well just a matter of weighing the evidence and so the immigration judge can be affirmed or we have no jurisdiction to review that that factual determination that they didn't know he testified that only one of his co defendants news so i still think that that is a factual finding of the immigration judge that i should believe what i'm what he said that is somewhat ambiguous rather than what the government of the united states testimony that was provided but did the immigration to the immigration judge totally overlook what was in the government's letter i don't believe sir your honor i don't think the board did either in this case i very very relevant about whether the co defendants had knowledge and i think that was probably the principal premise of his decision to find that he had met our burden of proof and you know obviously i think we think that letter squarely contradicts that finding the dominican authorities whatever might happen to him at the hands of his co defendants think that's right because the boy didn't reach that issue but the big the big issue here of course you want that and if you're entitled to it you'll get it but  the big issue here is the removal billeted because from the because from the if again just so they understand what the consequences of the decision are if you went on remove ability mr doe gets to stay in the united states period end of story we're done that's exactly right whereas if you win on the other thing you've got another battle to fight in the even as to whether cap relief is available which is a lesser form of relief than not being removed that's exactly right your honor thank you very much thank