look at print the standpoint of should and a non citizen who has been convicted of a simple drug offense and placed on probation be permitted to stay here until his that we necessarily have to sidestep the question now is he going to be able to stay here long enough to be able to make an application after his profession is over if we look at to look at the cases beginning w we look at two hon certainly i think we were required to assess the question before the immigration judge and now before this court as to whether that individual who has the availability of that particular relief he's been convicted of a simple possession it's his first time he's never been given that relief previously and now class to class a felony so which would your distinction here be not withstanding the rule that a conviction for a drug offense would normally bar relief that he would distinguish it on the basis of the seriousness of the underlying drug offense so that for simple possession which i think here is a misdemeanor is it not or is it a felony conviction under california  think we have under the influence art which is presumably a misdemeanor correct ok so we have under the influence and i think that i think th this conduct falls within with within those parameters those four items that we look at for us with i was concerned with a slightly different problem and that is the fact that unless an the practice of some other state which defers the entry of a finding of guilt and allows the defendant through good behavior just serve a period of in essence should we be governed by the vagaries of the each individual state statute the way it's written or should we be governed in this instance by what is provided under the federal first offenders act but to do it the way you're urging us would be to just adopt a different variation which would be to declare that notwithstanding that some states consider it a conviction and tell expunged for our purposes we'll treat it as if it were a defer but and the only problem i have with that is that not everybody satisfactorily completes a period of deferral and therefore they don't get the relief under either method of  relief from deportation or removal absolutely and then we then we narrowed the focus then we said visit very narrow exception and this is going to be the narrow exception if these are the items that you have and we proceedings or once you look at the conduct you recognize that this falls within that category that you say well ok we need to wait but my memory's a little hazy on this even under the federal first offender statute you still have to satisfactorily complete the one year period you know just so that if you if you slip and you commit another offense and the court refuses to dismiss th charge then the conviction remains and you're not eligible for treatment under the federal first offender statute and it is for ever more conviction and i think the same would happen then in the  probation not to be arrested not to have any other convictions otherwise if he does then you're going to go back into court to be a violation of probation and you'll have whatever brought him to the courthouse steps the second time i mean the only problem i have with your argument is that it requires us to grant relief from the immigration consequences of his original misconduct before he has qualified for that relief under federal law but but aren't making the problem is that we have to have some assurance that he will but aren't we doing the same when we look at the my my understanding of the anticipatory nature of the really think you're requesting that i have some trouble with because we don't know what's going to happen in the future that's the whole problem with with these k the court had asked for us to respond give an indication as to what's happened with that twelve zero three point four at the state of the representation in your brief that the petition had been filed or something that is correct and what is the status of the status that back over at the court state court in fact we just did it this week and the reason for the reason it couldn't be acted upon is he still has not completed the probation but i want i wanted to have that at least a completed to terminate would be heard i would say we would probably have some disposition within ninety days i mean just because the this practical consideration someone has to retrieve the file and get us back on calendar even if we were able to get back and fr removed from the united states he was removed removed after the board's decision so he is no longer in the united states we would think in the case would necessarily have to stay here until he is brought back into the united states once he's here  i think it would be appropriate to without regard to whether he's here i guess i'm really asking a ventura question what here with us the authority to remain and the board if our case la have to make that decision based on the record that was before the board at the time it rule you would argue there are new developments and it seems to me that the answer is you petition to reopen or are you thinking the board would automatically deny it because it's been removed so there's no practical way to get relief from the board i think is a practical matter that occurs but i think this is the circuit has dealt with that particular issue in weaver's berg and we just heard i think the we haven't cited it and in response to the question i think we just heard the sensually puts is in a position where someone has already been removed from the united states you come back and the conviction is set aside it's a state court what happens at that point can the individual would you be so with the court i think that there are those are certainly from a practical standpoint very significant issues for us a question would be whether we can look at  and clarify that notwithstanding that individual in california for example who would have to file a twelve a three point four petition in order to gain the benefit that there is no that we should what good is the remedy that's afforded under the federal first offender stack what good is that remedy if you can not only get the remedy under the first offenders act if you satisfactorily complete the one year period the fact that on day one of the three hundred sixty five days you might be entitled to federal first offender treatment still requires you to serve the other three hundred sixty four without violating the provisions of the deferral but at point the one year has already passed and this case if we look to the date of the conviction it would have to the date of the conviction and today's date but it's a state conviction i mean part of the problem is you're arguing by analogy but you're arguing based l it appears it appears that unless we're willing to look at that line which i have under the federal first offenders and recognize that you can have you you can have deferred adjudication and that you can after the completion of probation be able to come back and unless we're able to look at that language and say an individual should the agency should forego prosecution for deportation purpose or removal purposes until such time as that period of probation is completed we've essentially begun to treat individuals differently depending on what state they came from which shocked us and other cases have read you're that that the the availability of the protection under f o federal first offenders act that that protection is still there now and that the probation has not and the federal first offender act does deal with first time simple possession so i respect i believe that the decision was based more on the fact that he did not have the expungement there was no alternate finding that even if it had been expunged he wouldn't be eligible under the they exercise it in a very meaningful way well in this case your honor the individual also has a second charge from ability if it's important to note that he was also charged with overstaying his visitors biased ignorant period of time there were two bases for the remov order not just controlled substance offense moreover while he did bring up the adjustment of status and attempt to renew that before the immigration judge he did not raise the issue of federal first offender act relief before the i j a he did raise it through all the other kinds of relief and of immigration laws such as cancellation adjustment found that the controlled substance offense preclude him from eligibility there is a point at page ninety of the records where the i g asks if there's anything else that  i believe that they had one citizen child but i believe they have one citizen child but the point in this case is that the court case can be let me ask you this just practically speaking though i'm just  and wife and child have to move leave the country in order to reunite the family well your honor that there are oftentimes unfortunate circumstances with the situation that individuals often find themselves placed and here he had a controlled substance conviction but they're fortunate circumstances if nothing can be done i'm just my question is was there anything that can be done to reunite this family here in the united states at this point your honor from my understanding because if he is expecting his removal order that has been executed and there is this point because his condition his conviction has not been expunged she remains convicted for what is just let me ask you this what if his conviction is expunged well i would again go back to this court's decision and shot his parents and i believe it's you know seven the court makes a point of saying that in that case which is very similar where the petition was saying hey look i might back to you if you with the court would like but my understanding is that it is because the order has been executed and he's he's been removed properly from the united states and that creates a bar to his r also submit that that could have happened earlier before before the case had gotten to this point as opposed to where now just now there are motions apparently being filed so many crawl that that could have happened earlier and also is there any concern there from the court ok thanks thanks very much