good morning your honor is and they have please the court my name is sabrina de mast and i represent the petitioner in this matter angel torres lopez i would like to reserve two minutes for a bottle please keep around the clock i'll try to help thank you are on your honors this court should sustain petitioners appeal and remain this case to the board of immigration appeals for two reasons first section two seventy three point five the california penal code is both overbroad and indivisible with respect to the issue of moral turpitude council i'm shocked we haven't a little bit of an unusual situation here as you know with the mathis case pending before the supreme court and other governments expressed a position on that in our argument today we're going to focus on what we've got on the assumption that math doesn't change anything obviously if divisible the record of conviction in this particular matter does not establish the relationship between the petitioner and the victim of the facts and such does not demonstrate that he was convicted of  are we supposed to go behind that no your honor certainly not your honor there's no complaint in this record there is only a minute order now as i'm sure the court is aware from looking at the minute order in the record it's a series of input in dates that summarize particular activities in the court that day whether the defendant pled guilty whether he was advised of the what the rights that he would have a case that stands for the proposition that minute orders are not reliable and can't be used that's one of the shepherd documents your honor it's not my position that you cannot use it as a shepherd document it's the position the petitioners position that the level that's fixed at the very top which is the only indication of what the relationship might have been to the victim is itself not actually reliable to show the basis of the conviction and i do have several cases that support that position your honor the first would be where to go viral versus ashcroft which is a two thousand and three ninth circuit case three twenty one at thirty eight eighty three  in again in that case your honor we were dealing with a divisible statute the only document was the judgment which is similar to the minute order here your honor and it listed a label for the count at issue of possession of a stolen vehicle and the government argued that this narrowed and otherwise divisible statute to one of two possible subsections that would have in fact that is a disqualifying offense for this individual and this court disagreed stating quote the convictions label only goes so far the conviction spouse i see that that's a real second one reach substantially the same except defendant pleads guilty oh i see your house and so on so there are two separate entries both of which referenced the code section and both of which said that there is corpora the spouse and yet if you know our case law at least at this point provides that corporal injury to a spouse as opposed to somebody else is a c i m t yes your honor however it is the this court has held both a ninth circuit two thousand and four decision three sixty seven at third nine zero three at issue there your honor was health and safety code only eleven three seventy nine which criminalized a number of things including transportation and sa a controlled substance offering furnishing giving away controlled substance says the judgment in that in was also the only document in the record for that case and it looked it described if you will it label the conviction transport slash that all controlled substance the district court held that this was sufficient to prove he was convicted of transporting and sale of a controlled substance which would have been an aggravated felony again the ninth circuit disagreed and they said they cited that the abstract of judgment merely cites excuse me merely recite the statute of conviction and describes it as transport slash cell controlled substance and the court went on to decline to quote infer from the simple summary of the statutory title in the abstract judgment that no marcos indeed pleaded guilty specifically to transportation and sale of a controlled substance there's also an unpublished decision your honor from two thousand and eight resurrects the on versus no case the two eighty seven fed appendix five fifty six again we were dealing with an over evaluating under the modified categorical approach whether or not the judgment which labeled the crime in this instance as quote transportation of counterfeit securities could then narrow this otherwise overbroad statute of from from from your perspective the first entry here which which speaks of the charge listed in the criminal complaint followed by a second one that says that he pled guilty to that charge him in both cases referring to the fact that it was corporal injury to his spouse  insufficient from your perspective pursuant to our case law yes your honor i think if there had been a complaint in this record for example which then with that in count one that the relationship was a spouse i can see we would have a different record of conviction before our first ent mentioned in new york three zero one refers to the ninety ninety five criminal complaint are we to ignore that fact we incorporated by reference do we assume they're lying what do we do your honor we certainly don't assume they're lying but we don't know what the complaint itself said it's very common as i'm sure the court is aware for complaints to have full sentences for example and that may say spouse or may say especially interested in your point five spouse cohabitant or a parent of a child in common both of these bouse i know your position is that he wasn't married to this woman at the time but that from your perspective we just ignore what's in this record it doesn't qualify your i don't think we ignore it my position that he pled to specifically narrowed it down to a spouse weiss why isn't that reliable enough as i see i'm just about out of the what you want your judgments question will give you two minutes when you get through answering her question i'm sorry on or would you please repeat your question one time why isn't it reliable enough that when he pled guilty he narrow the charge pled guilty down to infliction of corporal injury on a spouse i don't think this document establishments that he narrowed it down your honor it's not a plea transcript it doesn't show a judge saying you know sir do you understand your pleading guilty to corporal injury on your spouse again i would go back to the concept that's a numerated in this court's case law that this is just a short hand label it's a very long statute with the indictment or the complaint shows i think your honor if the purpose of the minit order is to narrow an otherwise divisible statue down then yes it has to have a fat and once a factual allegation because that sort of gets us outside the concept that you don't look at the underlying facts but to the extent that complaint gives something of a factual allegation that then shows the underlying conduct which the conviction actually rested upon as a matter of the law if it narrows down the elements of a otherwise overbroad statute i think that the  order like a judgment or an abstract is typically used to establish a count if there if there is a multi count complaint and together with whatever the factual allegations are in the complaint this court has held that those two documents together can you please the court my name's lance joe i represent the respondent united states attorney general assuming with mathis under this court's presidency as of now and as undisputed by petitioner in his appeal to the this conviction is not adequately documented as a matter of law under our case law to show that it's a c i m t doesn't he succeed even though he didn't quote exhausted before the  this court and baron versus ashcroft still required the exhaustion of like due process questions or anything that the board could help remedy in a sense and if the board oh yeah maybe there needs to be more documents the board could have sent it back but questions that don't need to be exhausted are like subst substantive constitutional questions or questions that are deferred to at all by the board and some instances when this case when you're looking at the record as has certainly something that should have been exhausted  there have to counsel takes the position that there has to be in the record a colloquy at the time of the pleading or a copy of an indictment or a criminal complaint  along with the plea what's the government's response to that first of all it was petitioner burn since this is a relief and the relief context petition was applying for cancellation of removal so the burden of production preexisting documents are there you're saying is the petitioners burden to produce some additional documents what documents would they want to produce they wouldn't want to produce the criminal complaint in the indictment or that would hurt them why would they want to produce issue with that if he did not believe that he was convicted of that he should have filed other documents what other documents backtracked a judgment may have had more information this information from which the minute or refers let's just say hypothetically that that all is there is what the government produced and say that is inadequate as a matter of law to show under the modified categorical analysis that this is a cia mt that would affect his to proceed in that in this proceeding and then what happens under young he would he would he would fail to meet his burden of proof under young yes in what sense inconclusive record of conviction with regards to well the government has to prove that it's a c i m t doesn't that's not his burden but why would that and if it was like it is the basis of removal certainly the government would have the burden context it is titian of burden of proof and the rule contests you're right the government has to submit evidence but in this case as as you guys spouse council's argument is that this is mere labeling that doesn't have the reliability and our current case law how do you respond to that that label as i mentioned in my in a supplemental brief there is evidence that the label graflex is a narrowing of the charge of the victim to the spouse and well sometimes they are sometimes they aren't so let's say you have a criminal complaint that charge your spouse comma cohabitant comma and whatever else the listing sort of statute provides now you go into court and  the court room deputy clerks prepare these minute orders under very limited time constraints and let's say she happens to in that entry select the very first term they don't think about what happens in federal court consequences the immigration modify calico analysis or anything else so without the underlying documents such as what he was advice during the change of plea how do we know that this isn't just a mere short hand label did the job and they're all dead accordingly and you can't really go beyond that if you can rebut the presumption but that wasn't done here obviously that you know then what happened the court said affirm the bourse decision to not have fisher is not eligible for cancellation of removal and so what i'm saying is if if as a matter of law no c i m p is proven how would that be the case again this matter has the burden to shows he is eligible for cancellation of removal and that burden he has to show that he has not held that he has not respect what i'm saying is if under our case law what is in the record is in adequate to show that he was convicted of a c i m t then what happens then he didn't meet his burden of proof this is truly not just trains but ships and planes basking in the night right we are really not communicating and did as a show in a movie what we have here is a failure to communicate all right i'll let me acknowledge that let me ask you a similar question we're talking a lot about the modify count on analysis and whether the document is sufficient but that isn't triggered unless the statute is divisible and the supreme court case that was argued recently mathis may shed light on the visibility of this particular statute that's makes sense for us to to hold pending mathes and so far your honors i'd like to briefly address two points raised by opposing counsel one is with respect to the burden of proof issue and he was with respect to exhaustion with respect to the burden of proof your honor the board did not decide whether or not an inconclusive record of conviction would meet the burden in which they state that the burden of proof is not at issue in this case your honour's secondly your honour's with respect to the question of exhaustion the board stated and i quote and it's decision your honour's on review we agree with the immigration judge that respondent is not eligible for cancellation because he has been convicted of an offense under sections two twelve eighteen and two thirty seventy two a lot of which are of course the crime involving moral turpitude sections the fact that the board the board before it had been remanded again by homeland security and did not provide an opportunity to respond either with conner legal arguments or additional documents in the record of conviction this chorded rizzo versus lynch decided this year and stated that even in that case a two sentence argument in the brief that the v a field to meaningfully challenge the i g disposition of the case did not constitute sufficiently presenting it to the board so how is that you a phrase sufficient to process issue in that case the petitioner had protested the issue of whether his wife's testimony should've been admissible and that was sufficient to exhaust the due process claim i would say the petitioners reference to not handling it affair in a fair manner fundamental fairness a not going to submit this case at this time so as to save a little paperwork but we're going to await the outcome of math us and then we will decide what we do with that point but we thank you both for your argument because in the event matters doesn't bear on this case then we will be prepared to move forward with the decision so we think counsel the case just argued is not submitted but will now move to the next case