longer exists the california superior court the state courts do not have any record now of a conviction wonderland the removal order however the board of immigration appeal in following i decision matter of pickering which states that it will not give effect to state court order that clash conviction  was foley to grant the alien humanitarian equitable relief and how do we know if we know all the motivation of the court if the state it's difficult from the record to go behind the conviction like the board that is here and give a motive to this state court judge just to why he decided to allow mr manuel they hope to withdraw his pl related to the merits either procedurally or substantively but not if it's done for sort of humanitarian reasons i'm just kind of lumping some things together how was the board supposed to determine when a conviction is been vacated what the motivation of the of the of the lower court was as to why they believe that the state court acted on humanitarian aren't aren't those matters that are largely within the control of that that are better within the control of the of the alien rather than the rather than the board after all if the alien petition to the lower court noise and on the record your honor i'll petitioners position is that from the pages that are on the record pages seven through nine which is the state court order that the vehicle used to get any court hearing was the habeas corpus motion how is corpus motion by definition it's a legal attack on the validity of the conviction but we don't have his underlying motion for  get more evidence if they in fact have doubts as to the motives behind the state court judge acting why why why is it the aliens burden that is to say as a general overarching matter it's clearly the government's burden to show supports the removal order to say it's not to the b i a doesn't have to go and find out what those documents are the government could win once the government on notice that you're relying on a vacated conviction looking at page two of the board's order here the respondent has failed to establish that his plea was withdrawn and count one of the complaint was there after dismissed on account of a defect in the underlying criminal proceedings that's a failure of proof that's not that's not an not required it was given to but isn't that going to pan on who's got the burden of proof and you told me that if you thought that it might be easier for the for the aliens to bear that burden of proof that would be for the government in this case is the government a lot of time record at the time of entering the nolo plea it's him almost immediately after the paternity test comes back showing that he is the father and the consequences of the basically to get off his back is represented by a public defender and i'm having trouble even thinking out what it might mean within the structure of pickering for spirit court judge to vacate that can conviction because there was something wrong with the nationally or because of some post hoc humanitarian reason i mean at the time of the nolo plea it strikes me as a problematic prosecution in the first place when there's almost no showing at that point maybe none really that could have been made on the record without adverse immigration consequences for the spirit would've been perfectly sensible understandable but if we're going to judge or say some really screwy about this conviction and so long as the prosecutor agrees i'm going to get rid of the failure to pay child support th going back to the supreme court trying to get that earlier conviction vacated but that doesn't necessarily mean that the judge in vacating the conviction and reinstating will convict him on count two which is basically just just being a court order which is can believe that that might have been the case there is case law in california state courts that to the point that if an alien is not given the exact immigration consequences obviously that the plea may be after these fathers who were delinquent on their child support payments yes you're out of that with who was that person person from district attorney's office yeah i and we hope that the court finds that the people he used to get this done was the habeas corpus which is attacking the legal basis so that conviction thank you my name is sam parker the attorney general me at least the cloyd mr monolingual in this case challenges the board's decision finding him subject to remove all as an alien convicted of a crime of child neglect because subsequent to the conclusion of this proceedings proceeding at a time when mr appeals were still working their way through the california system good could the government simply say well we have evidence of the conviction with superior court and we're ready to decide this case and it's just tough that changed and then he in fact found a not a motion to be man with what the boy but in fact i thought a motion to terminate and if you take a look at his motion to terminate it does not indicate unfortunately anything aside from the fa where a commission has been altered because not only did the board consider the evidence that was the point that was submitted by the petitioner in support i think the motion to terminate but it also looked at the entirety of the record including the original conviction documents which had been  previous conviction of the petitioner because they felt that it was some type of defect in the underlying criminal proceedings or was it of the type that what went toward his conviction relief meaning some type of humanitarian or immigration consequence reason why isn't it the burden of part of the government's burden of proof to show all that conviction has been vacated on an improper ground because your honor if the government's position is in this case because the conviction not the question i don't want to get to the it is whether or not the conviction as it now stands which is now the new conviction is sufficient and as a part of that was live a creation of the old is to say if the bill doesn't know who lose this is so who has the burden of production or burden of proof or whatever who bears the consequences the adverse consequences will be not knowing i have to say there's a little bit off to one side to be gave us two reasons for affirming the removal order one of them was we can't tell whether this is a pickering vacation and spirit corps and the other one and to be against it in any event the second burden for the fact of the i can't tell and this case government's position is that it was clearly and it was petitioners burden to demonstrate the reason behind why his conviction was vacated and one hundred unique his law or do you have any from this one because while it is within the context of reduced or became a conviction it was that within the question was that within the context of a motion to reopen but within that those fact that the set of facts the boy determine regulation that specifically tells us who bears the burden of production in this circumstance or whether there's any decisional law that tells us this i think you answered your no but i think the answer is that i don't believe that there is any specific regulation allow supplementing the record would you object to that i think the government's position here would be yes only because we believe that the boy did not care in finding that it did well but that you've already told me that earlier the later rearranging of the conviction that's right your honor any again i think the board in weighing all of the commission arguments that have been submitted before the immigration judge and then looking at the new evidence that had been submitted by petitioner in this case subsequent to  immigration the conclusion of the immigration judge proceedings i think the court the board looked at that and said well we believe that this conviction still remains for immigration purposes and the only way that couldn't be nullified or erased is going on here the basis for seeking removal here is a conviction for failure to pay child support under the circumstances of which we are now aware of the conviction was obtained obtained actually after this is now still a minor child and the government is removing him from mexico to a place where as almost certain he will not be able to continue to make child support payments there is something it seems to warning but as an instruction manual me but i do not understand why the government is seeking to do this and i understand you're honest concern and it certainly does seem like this could be a very kafkaesque circumstance unfortunately are we don't even know the number of people who are in this country illegally and a seat on this evidence to remove this person whose only removable crime in front of us is this third of a child support under the circumstances we know one of us so as to make it a virtual guarantee that he can no longer provide child support to a child who cleans seems clearly to need it what is going on here again your honor it prosecutorial discretion may rest with the department of homeland security but the basis of remove ability as a charge as that as a child neglect charge is something that has been stashed for the legislated by congress congress has found that child neglect and you're asking us to be an instrument of this what i have to say is an odd form of to being presented to the immigration judge in this case it was a form of a supplement to his appeal to the board indicating what yes why the government is wrong in that this charge no longer i think that would have pretty much an elephant this entire proceedings if obvious a scenario was that one document indicating here is the reason why we are seeking to get the reduction in my connection that would have made very clear to the boy the reason behind the state inglourious i'm not sure that single documents enough i mean who knows what's in the spirit court judge's head who knows what the conversation is in the transcript it may well be that the documents and i would be all you guys with the documents to give the judge the he might or might not assent of the spirit or judge but i want you to make it clear your honor in your order rearranging our vacating that you're doing it not only for their support for the humanitarian reason and brings me here i mean the question is why here but also for the independent  you would do this anyway so i'm not sure that the document that he filed is necessarily conclusive it may or may not have been but again this is all speculation right now weeks we don't know that that is the problem and they've got a number of government made no effort of course it's hard to read t vacated regarding the underlying proceedings of this criminal proceedings and not just merely for humanitarian reasons i see that i'm substantially