the morning your honour's may please the court actually all for the united states with leave i'd like to reserve to the minutes of time for a bottle the district court's order dismissing the indictment in this case is simply unsupportable under this court's precedent at the time of his deportation hearing in two thousand and four defendant was a two time aggravated felony and i emphasize the defendant does not contest that fact he does not deny that his eleven three seventy eight convictions were aggravated felonies and he does not deny that they would have thus foreclosed any application of voluntary departure at the time but the district court nevertheless found the defendant what it was possible that he would have received voluntary departure simply put what is illegal is not plausible under this court's precedence this court has repeatedly held that induced us to cho and in earlier cases and indeed the court rejected a much less radical standard for plausibility as the supreme court has held in an analogous context under strickland such a windfall is not the kind of legitimate prejudice that is cognizable on collateral review and defend its core strategy i submit on appeal has simply been to confuse the established prejudice standards that apply in thirty twenty sixty cases but yet is your honor and they've done an excellent job of it and so it's  is if a defendant seders something in a notice to a notice to a party that noticed the catering the notice to appear in this particular case that was only a controlled substance of an eleven three seventy nine however assuming in that that if the hypothetical hearing what were positing here had gone as it should have gone the i j a should have offered him voluntary departure if that were the only conviction i imagine the government would have your honor or at frankly these hearings are fairly informal as they actually play out i'm sure your honor has heard tapes of them before the idea is typically engage in a conversation with the defendant about their criminal history so it's possible that there would have been a the time he would have a rap sheet yes i would assume so i have not been in an ice hearing in person however having listened to many of these tapes in my experience the government lawyers do go in with a complete factors look to do so even if it wasn't a bar to voluntary departure criminal history is something the idea has to look at to exercise their discretion and so you're going to be talking about the aliens criminal history here but i understood the district  defendant never made a record justifying voluntary departure there's no facts in the record justifying its application and also no there's also limited facts in the record justifying not applying it in this case when this court is analyzing the plausibility of discretionary relief the court does not limit itself to the record of what actually happened and i laid out in the reply brief this would be very bad for defendants if that were the case because they have far more factors and ultimately they do have the burden to prove that would be plausible under the circumstances so in this case to use it as an example but there are many others like it that if it submitted a declaration saying what their circumstances were at the time the number of children they had with their spousal situation was their work history because those are the factors that the i j a would have considered had voluntary departure been offered at the time but of course were not the i j a record because it wasn't offered to him and so he never had the opportunity to make that record and likewise the government never had the opportunity to rebut it and the way this court has analyzed possibility in f r provisions simply to indicate that the i g could have looked beyond the notice to appear in order to consider whether or not those those convictions barred relief the court didn't engage in a true she added analysis of who had the burden under those regulations it was certainly is a matter of could the idea have looked the on the notice or not and in the deport ability context it's clear the i g cannot look beyond the notice to appear and so as a result this court doesn't look beyond it  question right on the second question and those other convictions would not have even come into play that he would not have dan deportable in the first place so the question of discussion i'm sure there are already there are even if the other with the exception of the issue that we pointed out in our supplemental briefs which is that not is there to kill a to the standard for the level of certainty you need about state law before you find that a statute is divisible before mathis there was no standard with it as you may be aware from reading the window and the various other opinions i don't know what the practicality is but what would you think of or as the supreme court sort of conclusive decision about what state law means in this legal framework there's a tiebreaker built into the decision making process which means that this court does not have to have complete clarity to render a decision in this case it doesn't need to come to you know the reason is that concurrence would be dispositive under the supreme court's framework and you don't need to look further than whether it's an unclear or clear question under california law so i think that certification is certainly an option and it would provide a concrete answer but this is not a legal regime in which you need a concrete answer to decide this case it's enough to say that the law is unclear and therefore you don't have the certainty required to apply the modified categorical clear well largely for the reasons  in jury instructions neither one of those things is somebody is required firmly so we have cases that we've cited in our brief saying that if you for example list the wrong controlled substance in an indictment that does not affect the sound conviction that results similarly in the martin case the california court of appeal said that if judge incorrectly instructed the jury on the identity of a controlled substance that likewise doesn't affect the soundness of the conviction indictment or if the judge instructs the jury on the wrong controlled substance so i think those cases when make it at best unclear whether the identity of a controlled substance is and that must be charged and some  people yes your honor but it would also be consistent with the supreme court's repeated insistence that the modified categorical approach only applies in a narrow range of cases and the same was true of the california burglary statute  so i don't think that i've been in congress result i think it would be very consistent with what the supreme court said over and over again if i could it would with iran is the interest in discussing the booster such a question before before i analyzed in a vacuum regardless of the concrete specifics of an immigration hearing in this case this is what the government is saying use he was not eligible for voluntary partial that he wasn't after a voluntary part or he in fact is not eligible now you've got an argument that maybe he was but that's the other so we don't have to know what happened in the hearing the fact is he this was not a situation where he went through a voluntary departure until the government needs its burden of proof to show that he's not and if it fails to do so i think due process requires that he be granted i mean he has it has to be proven in that hearing yes i think the governor that's i mean first sentence says that if state law fails to provide clear answers federal judges should then turn to charging documents and other shopper documents and then the last two sentences of the same paragraph seven  ok thank you very much appeals maybe could agree with my colleague but that's not necessary i differ with why it's not necessary first as we laid out in our supplemental brief this court has already decided the california law treats drug type as an element and it has done so based on analysis of california law and i would in particular direct the the court to vega ortiz where it noted a variety of sources so indicating including california model jury instructions that courts in california have adopted i did not cite in my supplement a brief but i would also direct the court to footnote twenty one of almanza around us in that case to the court analyzed the nature of court's deference to model jury instructions in california and it was on the basis of exactly that analysis that the court found with the elements of the vehicle code provision at issue and i meant amends around us were that's exactly the same framework underlying this court's analysis of the health and safety code and it's binding but even discusses california jury instructions and how courts in california and here to those instructions which amplifies a point that we had already made specifically about the health and safety code instructions even if california law did not provide clear answers and more importantly i think even if this court had not already decided what the elements were there is a tiebreaker as my colleague mentioned but the tiebreaker is the documents in a particular case that's what the court has now said twice from the supreme court in footnote  and now in mathis the documents in this particular case speak very clearly and indicate the defendant was charged with possession of methamphetamine findings regarding what the elements of the california health and safety provisions are to small notes defendant has not challenge the divisibility of the eleven three seventy eight convictions that prohibited voluntary departure there's a reason for that the analyze differently because it's about the eligibility for discretionary relief and so they would be analyzed under the law at the time under the dol the dozer so it's no accident that they haven't been challenged if the court has no further questions i w