is the divisibility how far we get to go on sixteen does thirteen just thirty whether it's controlled substance itself whether schedule one or schedule two or whether it's the actual specific identity of a chemical substance the nd issue that i think is more compelling here in light of this court's recent decision in the end is if it is divisible to this specific substance in this case can the government have met its burden be the same as categorical i understand elements and elements sound similar but in the categorical part i don't think they are also in the florida statute the florists state supreme court gives the jury instructions in georgia the jury instructions we don't have that same thing to counsel i have a little bit of experience with that but i can tell you that there is a very bold headed it all in caps statement of we exclaim any part in this do not rely on this in the same way that that would happen if they were done by a committee which is exactly what they are right to say that they spring from the wisdom of the florida supreme court justices to give us serve my former colleagues way too much credit so since the court seems to be leaning already that dean is binding we're going to treat the  as same way as the floor statute let's take the position and i think that we can win all right so the nd is in terms of ecstasy right so both georgia and the drug enforcement agency both say ecstasy is a street name you know so the government number one the i j a in this case never i mean he kind of just glosses over the fact that the da says it's a myriad of substance so you rely on the da report which isn't in the record but you quote that fact sheet from the da in your brief right multiple times right ross so let's look at page twenty two dollars of your brief which comes from the quote it says and that's actually quote many ecstasy tablets contain not only m d m a but also a number of other drugs or drug combinations right dear reporting knowledge is that a is in each of those pills it just may be with other drugs or other combinations and then it continues on to say that other things are also sold as ecstasy m d m a p m a all these other things but even if you don't need the da the reasonable probability test is i can point to georgia case law so all i need is farly to point at two substances t f m p p m b z p that say that both of which were federally controlled substances at the time this occurred right that i get to look at the time of removal so let's say that at the time t f m p p is no longer on that at the time of the conviction but the were federally controlled substances no matter which substance it is and i think the case law in georgia is overwhelming that it refers to m d m a but even if we set your argument all of the substances were federally controlled substances at the time of the conviction so i don't see how you can possibly when well one we had established that georgia punished as a number of different substances as ecstasy so it's not confined to one so then we enjoy it moncrief presumption it's not our burden every one of them wants that the georgia courts refer to it was a federally controlled substance at the time of the conviction i agree but we have to look at the time of removal so when he's being judged what that conviction was for right i agree your honor but the issue becomes this if i was convicted of cocaine in two thousand and three and then the federal government decides to take cocaine off of the federal control substanceless do you think i can still be removed from for cocaine having been convicted of something that qualifies under federal law when the conviction was obtained it was a valid conviction conviction has it been vacated if it's been taken off the list it has there's no retroactive expungement of the conviction is there no but i think we have to look at what's on the federal controlled substances at the time word judy caging remove ability let's fast federal from the georgia supreme court specifically stated quote m d m a commonly known as ecstasy is a schedule one controlled substance under georgia law right right and cooper specifically referred to the chemical m d m a as m d m a or ecstasy right right so how do you do it fairly then if there's conflicting evidence let's assume that there's conflicting evidence that be a is allowed to look at that conflicting evidence and make a finding as it did here is it not no because in yours number one you're totally blowing away d h is the quantum of proof that they have but i'm not saying it's not they have to provide clear convincing evidence but you have florida georgia supreme court case law in which it's relying on how is that not sufficient evidence to sustain the burden in this case because there's also georgia cases again when we're looking at reasonable probability if i can point to other georgia cases where other substances are part of his excellency and we know that georgia has referred to a number of different things as  step back in d n a is also often referred to as molly if it said mollie in his indictment in mali and his conviction record we would we all agree that that's too vague i don't know the answer to that but what other i mean i understand you rely on farley but among the a bunch of the other cases you rely on don't say that it's ecstasy it's as it's similar to ecstasy or it's ecstasy like but not other than farley i don't know of any other case including rogers and walker which you guys discuss that says this substance is ecstasy but i also think let's say that mr gordon was sitting there he's talking to his public defender and he's like i didn't have india may i had t f m p p and the public figures like it doesn't matter you know either way either one controlled substance so he's like ok i'll just take a plea rather than take this two to trial we don't have a definitive no and there's no evidence of that there's no interest zero i mean your client did not testify and any that i pled guilty to this even though i thought it was this substance as opposed to that substance what we do know is that georgia as a matter of law have to point to my own case or point to one other case it's not that i have to point to multiple cases so we have pointed to one of the cases where sale of ecstasy was comprised of one substance and another substance is one of them federally controlled one of non family controlled so then once we step back and say he enjoys the moncrief presumption and all parties have conceded that that schedule is overbroad that's it i mean is too vague so i want to go back to then what judge bill pryor said because as i understand it all the substances were federally controlled the both that's the case that's problematic for you too is it not i guess i'm on the on there standing that when we're judging remove ability we look at the time that they're actually in removal proceedings again if something was taken off the federal controlled substance list and i don't see how you could later be removed let me ask you this way if we look at the federal controlled substance list at the time of movability that you're talking about and every substance that could be considered ecstasy is already on there that would be problematic for you would it not i don't think that we have every case but also i would fall back on the d e a s report where they say d s m caffeine all of these things that are not i just read to you from the least the quote from the g a o report that you had that where it says specifically many ecstasy tablets contain not only d m a meaning d n a things and we have no certainty that the categorical proto requires the mere fact that we're having this factual argument is everything that the categorical approach was designed to avoid you know we're supposed to be a bit come back thirty years later and say when somebody is in removal proceedings either this is  you know a removable offense or it's not and we just don't have that here i don't think that you can say that a street name is the certainty that mathis requires here and it again if it was dope if it was molly if it was as the case in martin blue lily sixty six dollars i just don't think that that would be sufficient and because it is sixty percent seventy percent of the time refers to m d m a i don't think that that's the that the government can meet its clear and convincing burden and i think instead the burden has been placed on good morning your honour's i'm erica miles for the attorney general it unless the court would like to discuss divisibility the government's position is well articulated in our brief the door just supreme court law and this court's precedent demonstrate that the controlled substance element is divisible as to the identity of the drugs the m d m a question ecstasy several georgia courts of appeals cases when examining a drug that has been charged as ecstasy have stated it without mincing words that ecstasy is m d m a in georgia and the walker case gives us a good example where they even distinguish they said that there's street ecstasy and that was determined to be this other drug t f m p p and that in the walker case a field test demonstrated to the officer at the time that they believed it was ecstasy as they took it back to the lab for chemical analysis they realized it was not in fact ecstasy it was the street drug  the street ecstasy t f m p p they indicted him for t f m p p and he was convicted for t f m p p and in the end the other cases like rogers and farley it was in fact established that the person rogers and farley were pulled in possession of the other drug that came out at trial and it just it wasn't enough to overturn a conviction because it was those other drugs  m p p whichever the drug were also federally controlled drugs so it did come out that although the original belief was that it was ecstasy and that that's what he possessed he in fact possessed something else and the court found it sufficient that he possessed that other drugs such as b z p because that too is federally controlled but what all of this shows is that a prosecutor must prove with the substances that the person knows what the substances and that it in fact is federally controlled and that and the courts when they are they do take this question seriously they do fact find as to what the drug is and when it's not x to see which they refer to as m d m a they get to the bottom of what the substance actually is let me ask you question about your brief in your brief when you're talking about farley you say that the you say that the defendant in you said right here i think that the defendant was convicted of a four different substance but farley says on the page that you cite the defendant was convicted of the sale of ecstasy yes he was convicted of the sale of ecstasy but he it was determined that it was in fact be z p and that fact finding was made it was just that the court determined that they were significantly similar enough and that be z p can be contained within as you had the discussion so it didn't matter not that it was in that particular case have harley in front of me i apologize i thought that the court informally had only come to tacitly accepted that the conviction was for the sale of ecstasy but but then it goes because that really wasn't an issue it it was not a central issue in the case so you can only in holding about you know exactly about that there's no holding about that in the walker case and in the rogers case for example the rogers case was where the person said i thought i had b z and and if the jury did not believe so he either needed to be charged with having b b z p or he could not be convicted and the identity of the substance was distinctly at the forefront of the issue in the rogers case because you know the mens rea of what did the person believe they were possessing was front and central there and a person could not be convicted if they said i thought i i possessed b z p but was charged with m d m a or with ecstasy but in that case it was sufficient that the jury did not have to believe that he thought he possessed something else so when the identity of the substance is front and central in the cases or when the court is just clarifying for the record that they're in there indicted for ecstasy we all know ecstasy is not the term used on the drug schedule the court clarif that ecstasy is d m a for georgia purposes and that's where the case law stands there's no case to the contrary that says ecstasy is considered something else and if it's determined to be something else they haven't said that the indictment is is problematic or has some big error but it but that is typically because as you were noting earlier they're all controlled substances but  but in the cases they really do and when the identity becomes in question they do get to the facts of what the substance really isn't a prosecutors have changed their initial assessment and have indicted on the correct drug so then  a or ecstasy gets out of the picture and they indict for t f and p p and whatnot if the court doesn't have any further questions i will cede my time that right thank you excellent mistress or and so i would just start by saying in again it is not my burden is not mr gordon's burden at the immigration court so i just don't think that there is substantial evidence here given if we're going to say d n applies and we have to know the specific chemical identity and we've established that the case law has referred to x to see as a number of different things in one case we have and again i only need one case to point  refers to end up hold the conviction of a sale of ecstasy that contains multiple drugs that same to made the point miss mouse and on was right which is that where whenever the identity of the substance has been an issue that the court needed to decide that the georgia courts have always decided that ecstasy is and that the best thing you have is a tacit exception for  ly that it might have been something else but it wasn't an issue that had to be decided in that case that's and that's and even the substances that it might have been are federally controlled substances to but again that sort of minimizes the presumption that he enjoys in this setting so it would be the minimum conduct of the statute given that we don't know what the chemical identity of the substance is so it would be the whole range of controlled substances it wouldn't just be confined to even the substances in the case law and we don't have we know it's ecstasy right we do know that we know that it's a street name for something that could refer to you know we know from the shep oculus ecstasy and if the only evidence that it's been presented to the b a is that whatever ecstasy is it is a schedule one it is both prohibited by georgia and prohibited by federal court the federal law at the time removal at the time that you say did then how can you possibly prevail but if n p p at the time removal is no longer on the federal controlled substance so that's that's it so that if you're wrong about that well look but if you're wrong about that you agree that that's problematic for you it's problematic if we agree that we can say with certainty what ecstasy is i am i take the position that if i put molly in their foot blue magic in there if i put some other street name and we're going to say that the chemical identity a subset of the you're looking at in the abstract to be a actually had stuff in front of it it had something in front of it and what it had in front of it was georgia law and you haven't pointed out the georgia law says it's caffeine acces caffeine is something else you've said it's it's we some cases suggest add some others that it could be these two other substances right if those two other substances are also schedule one at the relevant time period under federal law isn't that problematic for you or better that are listed i apologise i still don't think so because i  street name it to me at its best is vague i think and then again once we get to the vague point mr gordon when it's so i understand you're saying ok well we can only point to these different  are we to assume anything else other than cocaine always too much coca cola but if an indictment said oh i know that's not the question i asked you yes don't might be different but it's coke and everyone understands coke to be cocaine i think it the indictment said you know was charged with possession of coke comma a schedule one substance you know that and then at trial it was proved that it was cocaine and they were drug lab test that yes that would be sufficient but the thing is we just don't know what's behind the bail in this particular case you know so there's if you go and look at the conviction it was never not allowed to look at lab reports minutes never shephard document right but even the conviction doctor itself like the final document doesn't even reference i see it's just as  one so i mean in theory he could have pled to an unnamed schedule one drug we don't know i just think that the records to make it a big miss isn't that why the burden of proof though is not metaphysical certainty but is instead a clear and convincing evidence right to the supreme court is that that's the near beyond reasonable doubt and this is an individual who you go back and look at the record who has changed his life who has had any contact with law enforcement since two thousand and five so we're going to banish him we're going to permanently exile him based off of this record i mean he's completely reformed his life and that evidence is in the record and so that's why i don't think that there is sufficient evidence that the government could have possibly met its burden i just feel like it was given short shrift at the immigration court stage and then completely glossed over at the board when we repeatedly point it to both the d a and in georgia cases that say different and i think the court for its consideration thank you distress or you we have your