states based on his convictions for possession of drug paraphernalia under kentucky law as the supreme court recently explained in the levy lynch to trigger removal the government must connect an element of his conviction to a drug control under federal law i think you'll have to ad jurisdiction first i expected that i might your honor so beginning with the jurisdictional point we understand the government to have conceded that even if the board has the power to enter orders of removal in the first instance the board erred in doing so here we would go a step further and say that the board lacks the authority to enter an order removal at all as multiple courts of appeals have held however that order does not deprive the court of appeals of jurisdiction for several reasons eight u s c twelve fifty two conditions the jurisdiction of the court of appeals on the existence of a final order removal and there's no question that the board purported to enter a final order of removal in this case the board issued a legal document purporting to order petitioners removal from the country and even if that order was procedurally defective in the sense that the board arrogated the sortie from the immigration judge that procedural the fact does not deprive the court of jurisdiction well it's more than a procedural defect the board didn't have any authority to ensure a removal order  the first instance and that it seems to me at least us with nothing to review we would just be that different from the globe case this is certainly different from r your honor certainly right that this is more than an ordinary procedural the fact at the same time the condition for jurisdiction specified by section twelve fifty two is still present there is an order of removal albeit  and we would also point out that the supreme court has frequently held that a defect in the agency's doura stiction meaning that the agency has exceeded its authority and the statute does not deprive the court of appeals of jurisdiction to consider the substance of the order and the court has frequently gone exactly right your honor there's no question that a petitioner had done nothing he would have been deported from the country so the position that the government is putting in non citizens like petitioner and it is really quite troubling petitioner is forced to take a jurisdictionally improper appeal of the court of appeals so that the court vacates the order of removal then the petitioner has to go back to the board gets reminded back to the immigration judge has to pursue a pointless appeal to the board because the board has decided the why we think that the court has jurisdiction here as we point out in our briefs there are a number of provisions of the immigration and nationality act that are based on the existence of a final order of removal and if my colleague on the other side is correct and there is no final order removal here then none of those provisions of the statute would be operable the statutes prescription on re entering the country within a certain period of time would no longer be live and similarly the statutes provisions which are of asian of a final order removal would probability that a statute will be used to prosecute non generic conduct if the statute expressly lists and highlights non generic conduct as being worthy of criminal penalties and that's exactly the case here the kentucky statute issue unquestionably criminalizes three substances that are not found on the federal statutes and so we argue the courts and follow the first circuit in holding that there is per se a realistic probability that the statute would be applied to such substances and that result moreover is consistent with the very nature of the categorical approach the supreme court in its decisions elucidating the categorical approach since taylor has emphasized that the categorical approach focuses on the statutory elements of the conviction the way the state statu lays out the elements of the state offense and in many of its cases applying the categorical approach the court has not looked for examples where the state statute has been applied to non generic conduct in holding that the state statute is overbroad that was the case in de camps where the court considered the california burglary statute and whether it encompassed a mall full entry or entering a building to burglarize it with lawful purposes as is the case with the shoplifter that was the case in johnson which considers whether florida's battery statute  encompassed mere offensive touching and that was the case in mathis where the court considered i was burglary statute and whether that encompasses the burglary of a vehicle license is controlled by moncrief and mentally as determined we will we certainly think that the case is controlled by the luly i think you may be referring to moncrief and doing us all over as which is right the two supreme court cases that the board drew its realistic probability analysis from those cases as this court put it in the maxwell case are concerned with fanciful hypotheticals about the reach of the state statute where the petitioner or the defendant comes up with an out their interpretation of the state statutes language to call is it to reach non generic conduct that's very different from what we have here there is no legal imagination necessary to conclude that the state statute reaches non generic conduct we know that the state statute does because it expressly tells us so it lists numerous substances for criminal penalties that the federal statute does not didn't involve fanciful hypotheticals involves a misdemeanor versus a felony marijuana conviction did not you're right that moncrief is a bit different than the way to solve or is in the sense that the petitioner in moncrief didn't argue some wacky interpretation of the state statute the conduct clearly fell within the state statute but moncrief is different for another reason the federal statute at issue and moncrief made it their removable felony to traffic in marijuana but created a misdemeanor carve out for trafficking of marijuana in small amounts without remuneration the state statute included included the same general prohibition but lacked the carve out that the federal statute had and we think that's a meaningfully different circumstance from what we have here a state maint might decline to include such a carve out for any number of reasons in fact if it thinks that the conduct is unlikely to be prosecuted it may see no reason to include such a car about it all but it's a different matter entirely when the state takes the additional step of  highlighting non generic conduct within that statute when the state takes that additional step we think that's a powerful signal that the state in fact intends to prosecute such conduct so i'd like to turn now to some of the reasons why this approach makes good sense i e not requiring petitioners in every case not to come forward with simple prosecutions the supreme court is in full sized in its decisions laying out the categorical approach that the categorical approach is meant to reduce the burden on the parties and the courts and also to ensure consistency between the petitioners in different states and each of these concerns would be frustrated by applying the board's broad understanding of the realistic probability analysis well i'm not sure about that it's  this is sort of anomalous that we have these three prohibited substances in a paraphernalia law that is aimed at something that's far more intuitive  in the drug trade and this would be something that anyone looking at this without the overlay a whole lot of technicalities as an warranted break for your clients lesser that departs from the norm around the country rather than conforms to the norm or perpetuates consistency we certainly recognize that concern your honor in any case it may be fairly clear that as is the case here the petitioner engaged in the sort of conduct of the federal statute for scribes because of some and all anomaly in the way the state statutes crafted the categor approach doesn't count as to their convictions but it's important to recognize that that's a choice that both congress and the supreme court have made among the various risks congress in using the term conviction in the statute as emphasized that the courts aren't supposed to look to the facts of the underlying offense they're only supposed to look to what the conviction necessarily established and so in many of the court's cases applying the categorical approach it's been fairly clear that the petitioner or the defendant engaged in precisely the generic conduct that congress sought to criminalize but that's nonetheless the way the categorical approach plays out and there are a number of ways the state can seek to avoid these sorts of anomalies from causing problems the state can tie its schedules to the federal schedules by making them change whenever the federal statute changes or the state can simply drafted divisible statute that creates different crimes with different penalties for the conduct of states don't craft criminal laws with federal immigration policy in mind it's just that's just an unrealistic argument that states can get around this by thinking about how the federal immigration laws apply that's that's not a state concern it's certainly true that states don't set out to draft their criminal statutes while thinking about the possibility of federal immigration consequences but if as your honor points out there were some anomaly where somebody who clearly committed generic conduct you know escaped federal consequences for their crime then that might prompt the state to react but as i see my time's going in a rebuttal i would just make one other point which is that even if the court disagrees with us that there is a realistic probability per se of a state statute encompasses the non generic conduct petitioner is clearly presented numerous prosecutions of non federally controlled substances under kentucky law specifically petitioner shown that kentucky prosecutes offenses involved because of the fact that kentucky prosecutes other drug crimes other crimes involving these particular drugs shows that these are not drugs that realistically never pop up out in the field of the state has no interest in prosecuting it simply a mere happenstance that the court hasn't prosecuted any cases involving paraphernalia relating those substances up to the appellate courts and it's worth noting that drug paraphernalia convictions under kentucky law are class a misdemeanor so there's simply no reason a a defendant would pursue that case all the way up to the kentucky supreme court or to the point where those opinions would pop up in you know the west law or the case reporters so in many cases a non citizen may have to trawl through the state's paper dock or whatever electronic dockets it has to find convictions for these substances are normally punished with a fine right your honor and or some small amount of jail time but certainly not the sort of jail time that would prompt somebody to pursue a link the appeal so unless the may please the court this case should be revenged back to the agency because we have at a minimum a problematic final order in this case at a minimum  hunks like have final on her to read me but the petitioner would have had opportunities to for example if this is not a final order there are other avenues the petitioner would have had to have contested say he was removed he could have sued the government  in some other capacity to say i did not have a final or you improperly removed me and seek appropriate damages or declaratory relief so don't help me with yes why good could will all be back in front of the three of us a year or two from now i will  will be detained in the meantime tai even know on the merits there is an on going case from the supreme court of the united states this goes back to the agency that goes back to the immigration judge there will be further hearings presumably he has asked for relief there will be further hearings on every three regarding early when it is appealed to the board the petitioner is completely free to raise any of the arguments that he's raising here some of them for the first time before the board with regard to remove ability again he's not precluded from doing that he can do that once more and then if the board does find him removable does not find him eligible for relief because back here and we finally got a fully baked case we can address all of the issues not just a sliver in some my in carved out in a footnote an exception saying this case does not pretend to address the application of the categorical approach as it was described in or as it was  different and that was that the phrase relating to in the controlled substance for movability ground referred to the statute and allowed any kind of criminal offense that somehow related to a controlled substance just broadly conceived to be a removable offense and the supreme court said no that's not the case you have to apply the same approach that the government applies in possession cases that is you have to attempt to connect the controlled substance in the ground and the paraphernalia grounded remove ability to a controlled substance on the federal schedule it did not say that you cannot apply the realistic probability test in those circumstances look this is not an can't possibly understand how under the categorical reproach these positions these convictions could ever be used to support remove abilit government believes it has put forward reasons to conclude that eleven zero one hundred forty seven a and b do not require that this be treated as a final order i mean required yes allow for the poor to to enter a final order in this or circumstance the government's perfectly aware and understands if this court wants to go ahead and go along with the other five circuits out there that if found that this is not a final order and i've also found that as a result they the government isn't making a very robust attempt to  with imagine a terri imagine a tory out there interpretations of the state statute but as was the case in little ian as is the case here there's no imagination required to hold that the state statute encompasses non generic conduct the state test and the statute tells us on its face that it does and those earlier cases also arose in the context in at a time when the supreme court was grappling with the limits of that generic crime  doctrine we now have a more fully formed body of case law from the supreme court and what the categorical approach entails right your honor i think the court has emphasized sense of those cases that the categorical approach focuses on the statute and that the court isn't to disregard the plain meaning of the statute in favor of this review of the state it's prosecutorial practices while we also have a stronger over breath principle in light of the camp and matheson and others that if the state overbroad there's a presumption that it's not generic that's certainly true as well your honor that we have to presume that the conviction rested on nothing more than the least of the acts criminalize and not as the realistic probability analysis would seem to imply taken under advisement