ok now in terms of my initial filing i freely can see there is abundance of case law was clearly against me in the sense that a misdemeanor under state law can still be construed as an aggravated fel i was trying to argue that those cases all look at the immigration statute as opposed to looking at the federal statute which under california law misdemeanor can never be more than one year and under federal law you know the lowest federal felony is one year in a that the actual sentence in this case was three hundred sixty five days none whatsoever none whatever and so i was you know are going to plain reading of the law for something to be aggravated has to be over and above what is a minimum felony indeed under federal law a felony cannot be exactly one year has to be one year you know that's eighteen u s c three five five nine eight five so i was sort of asking for a modification of existing law now i sent a couple of twenty jail letters there's been a change in the california legislature which says all misdemeanors all sentences that are one year are now construed to be three hundred sixty four the question is is that retroactive and i guess the bigger question is whether or not this court can construe a california statute when today january first of this year so my one argument be that certainly call for remain and to address that issue and by then presumably the california courts will have let's see if i understand what you're saying he's saying that we should not take the definition of aggravated felony as the fellow he which during the one year because this is a misdemeanor under california law is that correct that's argument over what and that will happen in cases and say we don't and that's why i had to freely concede let's go to plan b plan b is i'm sorry go ahead you clearly to prevent you know the unconstitutional precept of somebody being convicted of a crime is to apply eighteen point five ready to active duty in the case of the c who should well yes i mean i quoted the toppy of the superior court that makes that precise a lot of other issues in any case but it does say that the presumption against the retroactive application of criminal statutes does not apply when it's in a meal or it is beneficial statute right we don't like to you know so to be convicted of something it wasn't a  application of criminal statutes doesn't apply in this case and i would argue the rule of law in this case clearly california had integration in mind and this is a clearly a militar statute and under the rule of as a rule aren't too many statutes that are all that immunity of but i guess the other and i don't know if this procedurally i'm preparing a motion to compensate period court to have this appear in court declare the sentence there in sixty four days so that would be a be disqualified from any relief because of the persecutor bar that see other issue in this case of course ok and i don't see where that finding in holding is defective well well actually but with the criminal washoe provision i'm not sure the persecutor bar applies to that applies to asylum withholding so that's another that's you know those are separate forms of relief and then the car application was denied because it's an aggravated felony you saw them withholding was denied applications for asylum cancellation removal and with holy removal referendum not the nicaraguan and central american act in the car is different in cancellation yes right and there's no it doesn't i don't believe there's a specific person he'd rather bars for than a car now obviously the other issue here is that we claim he's not a persecutor so if we did have it in sixty four days that would open up other relief just the elements of eligibility is just to say you applied it doesn't look at the merits to be eligible for the car or i'm not making myself clear let's assume you can get in under the car ok he wants asylum under the car no it's it's completely separate the car is only what is that's what i'm asking you what does he have to show to get in a car or really oh yes show you know hard to dream hardship to himself or other family members and he has to be a person of good moral character no if he's phrase the exclusion of something i presume that congress intended it good morning alison i go from the department of justice representing the attorney general eight u s c section twelve thirty one b three b i far as anyone otherwise eligible from the karo who has prosecutor others from that i and he would have to show that he had been physically present in the united states for a period of seven years that his removal would cause extreme hardship to him or to his parents a spouse or child who is a united states citizen or lawful permanent resident he would also have to show that he was a person of good moral character if he showed that he would still be barred if he were a prosecutor if he had been shown to be a persecutor of others so he is barred because i believe that the evidence in this case indicated and that's all it has to do is indicate to you is that you disagree driver and i guess the evidence is that he knew he was driving these people to a location where they would be tortured is that yes and so have a haitian he clearly stated that he knew that he turned people over that they would then disappeared in that they were tortured and then he changed his testimony the immigration judge found him to be not credible and he did not challenge that credibility determination in fact there's no issue about his asylum eligibility because he was found not to be not to be eligible for asylum on the merits of his application he was found not to be eligible because he was not credible so his his asylum  ibility and his application for protection under the convention against torture are not even before the court because he he didn't he didn't challenge those in his brief and he didn't challenge them before that we do have the issue of the aggravated felony howard when we also have the issue of the aggravated felony and i'd like to point out to the court that there is a california the eighteen point five the california penal code eighteen point five that has an effect sorry because i was pretty sympathetic to the government's view on the retroactivity until i heard about tapia what's your response to tom i will get to have it if i could just make one point there is california penal code section three that isn't titled and i had to that up to the court i did file a twenty ha i referred to it and i handed it up to the court this morning the actual statute it's titled not retroactive and it states no part of it is retroactive and less expressly so declared nothing in eighteen point five states that it should be retroactive so therefore eighteen point five is not retroactive because nothing in it states that it is retroactive where we have the top you're curious there's some interesting reasoning there which mr sproles has brought to our attention yes and he filed something on monday in response to i actually filed tapia the common law states that the rule common law is that when there's an hour a repeal of a statute without a savings clause that you can't prosecute anything that was committed before the repeal and there is there are exceptions for a meal you're tive difficult word statute statutes or for  mitigating sentences however that is where the case that handed up is sect versus justices court of san rafael township and i and i've given the court copies of the case that is where the reason  is not your fault but the those materials have not arrived in front of us were knots we have there in the country through there maybe in the conference room ok but that is where in cases where the  the conviction is not final and the cases in which my colleague has referred the convictions or the cases are not final in this case mr  fact we have a we have a statute a california statute that says that statutes are not retroactive i mean addresses that particular situation that they're not retroactive unless we say so was that statute i see you talk about  well what strikes me in the tapir case acted eight hundred seventy two so i'm assuming we're strike here is an older class race mean the tapir case is this passage among others although we usually presume that new statutes are intended to operate prospect of lee that presumption is not a straight jacket and in this particular case they gave it retroactive to them yes but i believe in that case it was not final and mr the difference in mr praetorian and as his case is that his conviction was final and he went through post conviction proceedings which were final i mean if this court were to give effect to this statute in this case it would require it to we open every single state conviction and and give immigration effect to every single state conviction in which somebody had a burglary conviction that was treated as an aggravated not eligible on the merits of his of his we didn't the immigration court did not get to the merits of his new car a claim because a preacher minute that point but i'm what i'm getting at is could we decide the case and say because of the finding that the persecutor bar applies all relief he's not entitle to any relief we don't have to get anything else you don't have to you do not have to address his criminal conviction because he is not answering yes  seems like the easy way out if you're if you're right about that i am i am right about that in fact to addressing the persecutor bar if the evidence indicates that the part persecutor part applies the petitioner has to show by a preponderance of the evidence that it does not apply and in this case he has not done that he he said that  like to just pardon me while i just look at it he said that the that the immigration judge relied soley on his membership in this group where what the immigration judge relied on was his adverse credibility the fact that he tried to back away from statements that he made the fact that he actually admitted that he knew the people that he drove and handed over to his superior were being disappeared that they were being tortured that he knew what was going on and there are multiple cases in in this circuit that that is enough that somebody assisted in persecution when they have been drivers and turned people over abortion cases out of china where they have been drivers and trying people over you know for abortions or or for torture that they have assisted in persecution and we did nothing to you to rebut that evidence and that's more than sufficient and he didn't even address the credibility issue know you toiled in the vineyards of age fifty brian for many years you know seventeen is a very specific section right where you reduce the felony to a misdemeanor and that's there's nothing you know rehabilitative about that so that means if the full faith and credit is always given to a conviction in california that's reduced to a misdemeanor so that's my position and whether or not it can be retroactively applied on the topic of but let me make one caveat in a deep apology i don't have the cold the persecutor of other bar applies in the car as well so i have to address the persecutor other issue i was so miss your face i go is correct that it has a persecutor bar is valid and your guy is out of luck on every score i was looking at in the car section rate for non criminals and i apologize why isn't that finding supported by substantial evidence well i think number one if you look at but you know she certainly believe i believe you were a driver and i was his argument and all the other guys signed an application he never mentioned being a driver right i mean that they had made no reference to that the you know the only reference that he did something wrong as this grammatical nor ling's phrase i had been mistreated by this members but i also had mistreats and torture some of them now that's it right and so when he went before the  a his argument was i just drove i heard rumors i heard whispers that things were going i emphasized i never knew who was in the car i mean i think so we have to you know federico cases where it's a continuum of conduct and so you know the miranda alvarez case he was a translator well people were you know being in minister electric shocks it's much closer to him case for ninety seven hundred ninety ninety where he was a prison guard and the panel said this is to the persecution and that's what drivers i mean he was specific through his testimony before the i g that's all i did i never knew who was in the car and should we believe him you know because you know you have to convince us that her disbelief  but basically the notarial made this stuff up he said it and again it was inconsistent with his current testimony which was what she believed that was the driver so for some reason he leaves out being the driver in the prior asylum application she believes he was the driver of the testimony and yet she