lopez does or does not have an aggravated felony conviction that would prevent him from applying for cancellation of removal where all the parties and the courts below have concluded that is marijuana conviction is not an  important facts that are not in dispute st was the lopez's two thousand and three missouri marijuana convictions is not an aggravated felony that's not disputed by the government nor is it disputed by the immigration judge who reopens his remov conviction was an aggravated felony even though we now know it is not and it was not at that time mr lopez's removal proceedings had now been reopened because the immigration judge agreed that he was no longer removable as charged because in his original not appear the sole charge was being an aggravated felony or that conviction and again we all agree that that he is not the of homeland security added a new charge of remove ability that he had a controlled substance conviction but not an aggravated felony  and finally there was also noticed that for the new ground of remove ability that controlled substance conviction he is otherwise eligible for cancellation of removal but for the board's position that he has an aggravated felony by previous deportation on the basis of a conviction that is an aggravated felony now mr lopez that analysis should be fairly straightforward he does have a prior conviction for one thousand three hundred and twenty six dollars he has been previously b therefore despite a recognition by the board itself that the marijuana statute is not an aggravated felony despite the supreme court precedent of moncrief the board would perpetuate the fiction that mr lopez honor and we should take this somewhat of what's the let me interrupt here you've got the premise now the real question is what's the best guidance for us on how to resolve that if i understood that i don't really understand how to solve this case you're felony because i agree with your honor it certainly could be both but there's nothing in the language of one thousand three hundred and twenty five that would have required the sentencing judge to do any type of analysis or to take that snapshot at the time so that it won't but it would almost if you look at a you don't get there aggravated felony aggravated felonies and be true right correct yeah you never get there so you're in a and so there's a peer overlap because it says two years they are t and twenty six dollars becomes an aggravated felony is if there was a prior deportation and the basis for that prior deportation was a separate aggravated felony conviction and so the board's position is you need to look at one on one a four hundred and thirty to see what was congress intense did congress intend for the immigration judge to take that snapshot at the time he was making the analysis of mr lopez's purpose is the eligible for cancellation moncrief is retroactive it's retroactive your honor because this is a creep was an issue of statutory interpretation and therefore when something isn't a matter of statutory interpretation in this case in the language of the decision i don't believe that it's explicit or not and they do it later cases sometimes to as you know so they've they haven't told us whether it's retroactive what's your best case or authority i understand your statutory ar statutory interpretation the courts have been consistent that it is to be retroactive because it is an interpretation of the statute how the statute should be interpreted and how it always should have and determining whether there's an aggravated felony enhancement whether that sentencing judge can rely on a prior one thousand three hundred and twenty six conviction where such a thing was found and so that's a very different context and then what we have here and also in the gambro a case i believe the underlying conviction was accessory after the fact that court also held that the underlying conviction itself actually was an aggravated felony so the only issue again boa was whether a the board's decision in this case should not be disturbed it is the denial cancellation of remove all was correct because this tissue there has never sought post conviction relief before the district court that issued his side guilty plea the in answering your question about how do we resolve this i think we go to and nineteen i think it's the page number in the record of his plea and there's no question that there's no question that he was indicted with the b two but he was sentenced only for or that's a big part of the case to me but he still has pled guilty to it and it was an agony that charge itself as a matter they did felony based on the prior removal which was for an aggravated felony and he still has not sought post conviction relief and i don't understand why not but i don't have to understand that the bull ordered in the absence of case law addressing this specific issue in this circuit the board had to rely on its own presidential decision a has not been set aside oh i'm sorry i was reading the paragraph above the availability of post conviction motions or other forms of collateral attack does not affect the finality of the criminal conviction for immigration purposes and that's an important point for immigration purposes can unless and until the conviction has been overturned pursuant to such a motion the fact that he has  conviction relief leaves him in that same status as an aggravated felon barred from cancellation of remove all what do you do with the end of the statute this is zero that we're all talking about says basis of conviction for an offense described and of course then i think you have to go to d this is forty three dollars b tell me if i'm being clear about illicit illicit trafficking and a controlled substance ok i'm kind of getting stuck on taking this snapshot this period of time we understand that the underlying removal order was not an aggravated felony but this petitioner pled guilty at a time when it was still an underlying the underlying order was still an aggravated felony pled guilty to illegal reentry subsequent to an aggravated felony and has not sought relief from that he you know i don't know your honor honestly i don't know  yeah i don't i don't know how to respond to that the charge of reentering as an aggravated felony was valid at the time that it was entered and it has never been found to be not about at this point i just don't know what he can do other than go back to the district court and ask them to vacate the conviction well and that and the board had to rely on substantial evidence in the record and its own presidential decision in making the decision that he hasn't sought the relief and i know you're sort of pushing back on the snap shut analogy beautiful but if we could stretch that just a little bit further you've got buying the only who was previously deported to previously so we've got a past previously deported on the basis of a conviction but then the next phrase which i think judge benson was was focusing on was for an offense described in another paragraph some paragraph of this paragraph so i feel like then we're coming back to the currents and now is this so that when you know you could make the make the argument that the immigration judge is now in this time i'm looking at this paragraph and i think everybody agrees that you know that the drug the drug offense is no longer one that is qualifies as inaccurate in felony yes everyone does agree on that but i don't think that we can leap to the case law that would support such so i mean so even if you were to be looking at it under this paragraph and everyone would agree that now we look at it and say he doesn't have he doesn't qualify you still say that th is pair that phrase this paragraph really is still looking back to what was happening when he got his conviction for reentry you know maybe i'm just a little too dim to connect all those things but what i keep going back to is he voluntarily pled to the thirteen to twenty six a he has never taken any action to overturn it was valid at the time issued it is a separate ag fell and he must understand those consequences if he keeps getting hit with them i just don't understand why he has an attempted post conviction relief that would be his answer on the you've got to go back and set aside the here to double sex conviction i don't know the answer to that your honor but i'm happy to research it sure twenty eight j letter on any of these lucien's would be appreciated in our opening grip on page sixteen it's a supreme court case from one thousand nine hundred and ninety four which specifically says that i did issue a construction of the statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction so i think that case would find that moncrief is right to active although i think what's interesting is that in this case i don't know that the this court this early even needs to address that because the immigration judge and the board have already established that the marijuana conviction is not an aggravated felony they found that it's on page two of the b i a decision so really the only issue before this court is whether the government can rely on that prior conviction or not the immigration or your time short so do answer her main point which is that you should go back to the eastern district was or get to set aside there he was not previously removed based on a conviction that is defined in the paragraph today as an aggravated felony and so as you think in that he could he get there could he get that overturned because he'd still have an illegal re