court fundamentally our case really turns on whether or not the nov sixth two thousand and one removal order resulted in a gross miscarriage of justice or due process violation and mr dawson who had already received  the benefit of a two trial c waiver from a prior conviction in california for possession of controlled substance with intent to sell was in removal proceedings again in november seventeenth two thousand two thousand and one and let me do about the fact that i'm his counsel conceded remove ability in the second prissie there's a there's a legal standard for that judge if it's made in error and it would result in a gross miscarriage of justice then plea can be withdrawn and it can be changed and that was the effort that was made in the removal proceedings that were initiated in two thousand and eleven i had trouble understanding why that standard was met in this case maybe if you explained it in words i'd get it better ok so fundamentally we have really what's the benefit of a district court order which just missed a prosecution for unlawful entry after deportation and i invite you to read the magistrate's report and recommendation because it's a very thorough and complete analysis of the immigration judges don't seen two thousand and one removal order and it's an excellent critique because the judge failed entirely to conduct the proper analysis the tailor modify of sunni to tailor categorical analysis and then the modified kind of broken now so it's real simple in order for him to be removable in two thousand and one which is the crux of what he's facing now the court would have to determine whether or not his conviction was a true thirty seven a to b i remove all offen and to do that you have to look at what his conviction was for possession and whether or not it related to a controlled substance that listed both on the state schedules and the federal schedules because they are not coextensive and those proceedings in two thousand was very unclear he's required to review the conviction documents to satisfy himself that whatever drug it was that he was supposed to have possessed is a drug that's not only listed on the state's schedules but on the federal schedules the issue becomes a little bit more pointed when the notice to appear includes a factual allegation number four and factor allegation number four says that your convey i'm just going to summarize it convicted of possession of controlled substance cocaine and he admits that he admitted he admits that but he admits that without knowing that there's even an analysis that needs to be done the judge didn't inform him of that he didn't tell him by the way we have to review the conviction document to see what substance it was that you possessed and we know now that the two documented a lot of law goods coming since two thousand and one but in two thousand and one taylor before that and the methodology has never changed it's become more pointed and more clear over time with numerous cases that follow behind but clearly if the statutes are not coextensive and they're not involving drugs then the court has to do another level of analysis that's and by the way by the way judge that's done with every removal charge not just a drug charge so if you have a crime of violence you have to look and see whether there's a capital categorical match under statute that's been in existence since taylor long before two thousand and one that's the methodology so did the lawyer in the two thousand and ten proceeding when he had the first lawyer who  because here's what happens when the judge takes pleadings he admits it to twelve a six a six c i charge entry without inspection and this is oh by the way judge but so you know our argument is going to be that he's a lawful permanent resident because the november six two thousand and one order is fundamentally flawed and he points this out you see the judge we have a report recommendation and a district court order dismissing a prosecution for all unlawful entry after deportation that rests on this very deportation order and he points out that that federal district court judge found that there was a gross miscarriage of justice i do process a violation because there was no analysis done no taylor categorically thousand and if there was one how can there be a gross miscarriage of justice if in fact he had cocaine cocaine from both schedules he admitted he had cocaine and even if the law in two thousand  did require more how could there be a gross miscarriage of justice basically he was removed on account of that because again determining remove ability is not conduct based it's not fact base it's conviction documents let me just ask you so do we have case law that says that if an immigrant admits like here at the immigration hearing that it was cocaine i'm submit to you there is a long line of board cases and ninth circuit cases say it's not conduct specific in court with a look at what's in the conviction right you just have been the reason for that list by the mental to immigration law because we don't really  facts let me ask you this if you look at the conviction records that existed at the time he pled guilty to a lesser included offense yes but that wasn't by it so you know the court had the immigration judge handle it only two documents the original information which charge in possession with intent to sell and listed methamphetamine method immigration judge back into in two thousand and one he only had two documents and by the way this is pointed out quite clearly in the in the magistrate's report recommendation he had an abstract of judgment which only said he was convicted of possession of controlled substance and gave him the sentence of one year four months and the only other thing he had was the original information and no information with regard to the possession of controls of which is what he actually played guilty i'm not going to reserve any time here's why i'm having trouble seeing the gross miscarriage of justice if i understood this right which i may not often you know educate  in the two thousand and one hearing if three elected to represent himself the immigration judge asked him quote it's claimed that on may eleventh two thousand and one you were convicted in the california state court for possession of a controlled substance involving cocaine is that true and dawson answered quote yes so even even so here is spirit even if the documents alone wouldn't mean the question that the fact that there was an allegation by the does my question about the way the question i mean sometimes these immigration judges were the questions and i think he was trying to ask did you possess cocaine but that's rewrite he asked him about factual allegation number four and he agreed i guess you could read it a different way the way you're reading it judge is that he agreed with the claim made in fact allegation number four possession of controlled substance with intent to sell that was the only the only two documents that the judge had when he took his plea to him by the way if you look at the proceedings that occurred in this case there really fundamentally flawed and they're fundamentally flawed because the judge never looks at the conviction document itself never identifies a conviction document he relies upon doesn't market doesn't admit it and doesn't discuss it so if there is no this is why the  magistrates order decision and order in the final order dismissing that prosecution in my view was a wonderful evaluation of what happened in two thousand and one because there wasn't there was only two documented by the way just so you're clear that the magistrate pointed out too that they added the other thing about the guilty plea later in their argument there were only two documents that the court had he had the original information possession with intent to sell listed meth and then he had the abstract of judgments which only says he was convicted of possession nowhere in any of those documents is an information a complaint or anything and he charging documents is possessed controlled substance cocaine that's what the government needs he cannot better the charge or better his removal by admitting facts in a removal proceeding conducted six months later if it's not part of one proceeding and read a lot harder to make a collateral attack on a ten year old final proceeding than in that it is to make an attack on an ongoing proceeding well i don't look at it as an attack i look at it as an analysis and the analysis is did the judge in those proceedings conduct the appropriate analysis there is none he's served with conviction documents on the first day appears at the master but you know when the judge actually marks the documents and never identifies them and never looks that i've never discusses i'm on october thirtieth two weeks later so he takes pleadings first sustains the remov charge and then that's on october the sixteenth two thousand and one october the thirtieth and by the same the charge on october the thirtieth for the first time he he says oh by the way the conviction documents are identified in group exhibit two and that's all he by time so his attorney petitioned the department of homeland security to sue a spon to reopen the two thousand one proceedings that was in another that was in the original motion that was saying fundamentally if you find as the federal district court judge did a gross miscarriage of justice in a due process violation resulting from the november sixth two thousand and one removal proceedings because there was no evidence of cocaine and he can't supply that to the court six months after his conviction you can only look at the four corners the conviction document and it's not there then that's a fundamental missed carriage of justice and to do process violation and you can't prosecute this man and you can't deport this man and he's still a permanent resident the united it please the court in our joseph on behalf of the attorney general there's really only one issue in this appeal and that's whether mr dawson can withdraw his recent admissions and his concession of remove ability and what i'm going one was the proceeding that is basically in front of the court now the other proceeding was on a motion to reopen the two thousand and one removal order which basically mr gonzales spent most of his time discussing they brought this motion to reopen the two thousand and one removal for sad deep forest now it's not before him so why are we talking that well because that's basically what all his argument learn what's before us now is his motion to terminate the proceedings and as he stated in the proceedings his motion to terminate that's within the twenty that's not that's within the direct review correct or not the review of the motion to reopen and as he state d in these proceedings that the motion to reopen at the time was still pending and of course that dictates the relief he thinks he's going to be eligible for in the board decision that's in front of the court right now the board denied the motion to reopen there was a petition from you for review filed which this court dismissed so really what we're left with now is the two thousand and twelve decision the board which basically found that  he did not demonstrate that circumstances existed that would allow him to withdraw is concessions and his factual admissions why not why was that why wouldn't the magistrate judge a report recommendation  and one proceeding correctly look at the facts you look at what the documents of conviction the records of conviction and doesn't and let's assume for a moment that it doesn't show the controlled substance that he pled guilty to that he needed to complete at the pleading stage it is and i'll direct the court's attention to do we have any cases that say that the american can supply a factual basis for the underlying documents i thought this was all you know you you look at the record of conviction we wouldn't even get to the record of conviction in this case your honor and i'll direct the court's attention to perry on which is it six seventy five a third and in that case they drew a distinction between the pleading stage and the elem evidentiary stages at the pleading stage you're asked whether the immigration judge asked the immigrant whether or not they admit or deny the factual allegations and then remove a building charge contained in the end he had the immigration judge can accept in missions or concessions at that stage if there is sufficient to establish movability at that stage mr dawson admitted he was in possession of cocaine there responses are at the minimum ambiguous to that question so that i think we're it's since it's ambiguous and since it's been subsequently held that by  senate back and let the b i e figure this all out by looking at the correct documents and can see considering the whole thing and in your honor the b i has already looked at those documents is looked at that argument and it denied the motion to reopen those proceedings that's the other proceedings right where but if the motion to reopen is denied he's no water and l p r he petition for review for that and the court dismissed that petition sufficient to establish that he had been convicted of a controlled substance if mr dawson denied the factual allegations in the charges the proceedings would have gone to an evidentiary stage at that point and at that point as it's been conceded in our brief there's the record of conviction is probably not sufficient to write him i don't see how you know under those circumstances i but those circumstances don't exist here your honor only because he admitted to he admitted it and his admission is binding here does that mean that under assuming that we can look at the validity of the two thousand and one termination said well i know they know my notice to appear says it was cocaine but i'm not admitting it was cocaine at without the admission the i j a would then open the case to the government put on evidence that in fact what he was convicted of was cocaine and then he'd get to the taylor shepherd analysis of whether the documents were cognizable and so forth that's is that right that's correct your honor and as per as  e says the government's burned present the clear convincing evidence of the portability only applies to issues that are not resolved at the pleading stage his admission that his conviction involved cocaine resolved majia and i'm trying to figure out how to draw the line and determine which side of the law in this case is on i believe that peggy on and  his concessions or remove ability the initial factual admissions during the pleading stage never called into question and ultimately sufficient to establish his remove ability and pay off and then present as yet says that the government's burden to present a clear and convincing evidence applies at the that or apply some issues that are not resolved at the pleading stage there's an admission here at the pleading stage that the crime in question of all cocaine which is a controlled and so you're talking about the they have to show that the admission was untrue and since the board determined that that's really circular only if it's if his conviction in two thousand and one was invent was valid which is what the board found when it denied the motion to reopen admitted with inspection or parole and then he started to argue about l p r status which goes to the validity of the two thousand and one removal order current council took over and filed the motion to reopen making all the arguments he made this morning and that motion to reopen was denied so the two thousand one removal or was valid he was not in l p r therefore there was nothing that was untrue in the admission the council made in two thousand and eleven  there's really no one just result because the board has found that the two thousand and one removal order was valid therefore he's removable and to the extent that it's a tactical decision i think he made a strategic decision to concede and then he was going to attack at the motion to reopen it looks to me just like the lawyer didn't understand all the technicalities you know that how you how you analyze under taylor in the modified categorical approach you just didn't well you know it's not it's