found that there is a clear probability that his life or freedom would be threatened at issue here is the attorney general's decision and manner of why al which established a near rebuttable presumption that all drug trafficking  offenses are particularly serious underwire an individual facing a probability even a certainty of death forfeits protection under section two forty one b three my selling five dollars worth of marijuana to a friend because as the seller his role could never be considered career for all i have no doubt that the attorney general is that you're selling your data playing a peripheral role you are subject to why all you are not deserving of protection no matter what the consequence of your removal might be you know one i was focusing on a checklist for the media ok argue that you know it's laid out in our brief but our view is certainly that this violates international law and it violates the i a e a but i want to focus today on the issue of retroactivity the narrower question presented and that is even assuming argue when to that the attorney general court's decision in st cyr or the supreme court said there's quote little doubt that alien defendants considering whether to enter into a plea agreement are quote acutely aware of the immigration consequences of their convictions now this is had already been placed in removal proceedings that's how he was granted asylum he was also or he would have been aware that just four months before he entered his plea and fifteen member panel a rendered a unanimous decision unanimous in matter of s s noting that its earlier decision in q t m t had been superseded by ira and that aggravated felony convictions resulting in a sentence of less than five years could no longer be presumed to be particularly serious and would not presumptively bar people like him from qualifying for withholding of removal now the government claims repeatedly in its brief in this is that pages forty one forty two that even at the time of mr miguel's plea an aggravated felony conviction was presumed to be particularly serious for purposes of two forty one b three in doing so it relies on this case q t m t that case though in computing the pre ira ira version of two forty one v three and that version of the act had been repealed some pulled two years before mr me gal entered his plea that case has nothing to do with this case it was repealed the statute that it was interpreted was repealed two years before he entered his plea at the time of this man's plea the law was clear as that's had been decided four months earlier by unanimous panel of the board and the law was clear that this crime would page five ninety three of the record the b i upheld that terminations and it's march twenty second two thousand and one decision and this was seen at pages or five forty five and again at page ninety but after the i g found that mean we gals crime was not particularly serious and after the b i had sustained a finding an after mr beagle had been fighting his removal from d h s custody from for nearly three years the train general directed the board to refer him a handful of cases three cases involving quote de minimus or in consequential volume or value of drugs and a peripheral role by the alien and extraordinary and compelling circumstances could ever rebut the presumption applying that new standard very strict standard both to be ira and the immigration judge reversed their earlier conclusions and found that mr biggles conviction was a particularly serious crime and he was undeserving of protection even though the b i had found that he f l applies it just can't be applied to somebody like mr me gal who pled guilty before the attorney general soldier magically changed the state of the law the five factors laid out in montgomery ward all favor our view rather than the government's the first is whether this was a case of first impression no way a matter of while was not a case of first impression quite the contrary while itself makes clear that after the b i had rendered its decision in matter of s s it had consistently refused to apply any sort of presumption that drug trafficking crimes are particularly serious while itself reverses three such decisions was an abrupt departure even yes it was an abrupt departure because for three years beginning under the clinton administration for three years the b i had been saying now we're not going to presume after ira's amendments we're not going to presume that any aggravated felony that resulted in less than a five year sentence were particularly serious third factor is the extent to which the party against whom the rule is being applied relied on the former rule well mr gal relied on the pre y l state of the law in making the very most important decision of his life whether to plead t aggravated felony that was a decision that now could lead to his return to guatemala and could literally cost him his life the degree of burden which a retroactive order imposes on a party again in this case the burden of applying this decision retroactively to mr vaile is announced because the b i a has already determined that there's a probability that his life or freedom will be threatened if he's returned to guatemala now the government and its brief ignores this it says the opposite this is on page to guatemala that is untrue what the what the where did it find out it will find out what it found was in one of its earlier decisions it found that he would face past persecution prior proceedings that that immigration judge specific lee finds that the petitioner failed to establish that he faced any risk of future harm in guatemala and based on that failure the page one fifty one two hundred fifty four of the record because the immigration judge in that decision on august thirteenth two thousand and one found that the petitioner would not could not establish future harm in guatemala and because that because matter of y l had come out every man did it for consideration under y l to determine if there was a serious crime if i'm not mistaken i believe that is what the i did ok and that would be in  applied the petitioner argued that the application of y a l that in applying y l the immigration judge erred in determining the petitioner was not a peripheral actor however all that if there are procedural mechanisms by which the eight can and deal with an issue or deal with an alleged problem in an immigration judge's opinion then then even though that to for example that the application of y l that the immigration judge had improperly found the petitioner not to be a peripheral actor that would have taken care of the issue right then and there but that's not of course the be i could have said you made it you factually goofed factually so you should have found that he was ok even wonder why all my questions a little more specific i don't know the answer it could have been considered a particularly serious crime regardless of why all the nothing in y l limited the attorney general's discretion to foreign crimes particularly serious under twelve twelve thirty one b three the immigration judge and the attorney general retain jurisdiction to determine under other circumstances and this is in the congressional record in establishing twelve thirty one b three other circumstances under which crimes can be considered particularly serious therefore upon the enactment of iraq iran one thousand nine hundred six and the particular serious crime statute which try to exercise discretion in his favor basically has no shot no because it does not create and here we bought a bull presumption it does not create a procedural it creates a high standard but  sets out six factors that one has to meet and in this case the record supports the decision of the immigration judge that the petitioner did not meet one of those factors and that is that he was not a peripheral actor and for just moment he did he was more than just a mule he was the one that initially contacted the stockton undercover officer he set up the deal with him in the first instance in addition he is the one that contacted the people with the drug or removal on the basis of the original client that presumption may be overcome by showing by preponderance of the evidence that there is either been a fundamental change in circumstances such that the talents life applicants life or freedom would not be threatened however considering this case arises under the jurisdiction of the ninth circuit and on the record before us we find the service has failed to rebut the presumption under the new qualified for fear of future persecution well then i would stand corrected there were i'm number of b i have canyons and and death i apparently mis interpreted that one yes however my argument would be in conclusion that i just don't want to address the issue of waiver because again it's clear here on page five of the administrative record that this guy was represented by the florence project a pro bono agency in arizona and they filed a short brief with the withholding of removal the effect of the a g decision is to disrupt the settled expectations of the plea bargain in response reasonable reliance on the continued availability of immigration relief by significantly or wholly obstructing respondents eligibility for withholding or removal