conviction doesn't identify the underlying drug as a result we have to look to the alaska drug schedules to identify the drug the alaska schedules don't match up with the federal drug the information actually doesn't indicate the october thirtieth conduct that was crime she actually played to with a controlled substance in the third degree and then you have the indictment which only indicates unlawfully and knowingly delivering the schedule to a controlled substance there's no indication of what that substance is so when you compare the alaska schedules mean she when she ultimately talks about them doesn't she relate them to her homosexuality and that it was a cousin in the white friends or something ex boyfriend is that right that's correct i mean who did she say she reported him to testify that she first told her parents who did nothing and all right but that can't be a basis for the ins not of is really you have to if you take a step back and you look at the climate in mexico she's testified gays and lesbians are not protected by the police  they don't prosecute crimes against her the country report conditions indicate the exact same amount but i guess also if we're going to talk about the record wasn't she sent back after her convictions and she lived there and she actually openly  fought you know for rights for gay people in mexico and didn't suffer any harm as a result of that when she came back in ninety nine the four in fact her friends were so terrified to be seen with her that they purchased a ticket for her to come back to the united states she murder and there was no prosecution of that crime she feared that she would be next after that incident she went into hiding until she could save enough money to flee to the united states when she would ban she had every reason to believe that that found her to be not credible but i just doesn't speak to that right the only actually essential credibility right so we have to assume or credibility and based on her credible testimony in addition to the country condition repor particular view is whether mr feit demonstrated her eligibility for the relief she requested that being a cylon withholding of removal and protection under the convention against torture that being said  finds fail to demonstrate that she was not precluded from demonstrating eligibility for asylum as an alien convicted of an aggravated felony that is because she was not charged with being  r twelve forty point eight d that the alien shall have the burden of doubling that he or she is eligible for any requested benefit and the second sentence states that if the evidence indicates that one or more of the grounds for mandatory denial of the application for relief in this case being a cylon apply then the alien shall have the burden of proving by preponderance of the evidence that such grounds do not apply if if we were determining whether she were actually removable as an aggravated felony the modified carol approach would need to be used but the government's argument is that in this case where remove ability is not at issue where it was her burden to demonstrate that she was not convicted of an aggravated felony and we have the conviction needed in the record the conviction of misconduct involving a schedule two controlled substance then that the burden then shifts to mr fein to demonstrate by a preponderance of the evidence that this is not an aggravated felony and because mystified failed to demonstrate to the agency that the controlled substance involved in her claim was not one listed under the federal schedule then she failed to meet her eligibility her burden of demonstrating eligibility and in fact she admitted several times before the you're going outside the record to prove that it's an aggravated felony you're saying no we're not proving that it's an aggravated felony it was her burden under the preponderance of the evidence to show that you know it wasn't and you can look to other things that that's not controlled by the same case last as when you're trying to remove someone because it's an aggravated felony and i thought that was a very good explanation she makes to this court for the first time and that's another reason that she failed to demonstrate her burden of demonstrating that she wasn't convicted of an aggravated felony before the agency we have to assume credibility here because the b i didn't yes the i j a did make an adverse credibility terminations and the board simply stated even assuming that titian was credible she felt demonstrate that she met her burden that that met her burden of demonstrating that clear probability of persecution in mexico if you assume that she was raped twice and  something the mexican government was unable or unwilling to control purton it being that miserable client failed to report the alleged incidents in which she was raped at age twelve and age seventeen to the authorities until nine hundred eighty seven when she claims that she left to find a better job because of computer training and such that the name calling she suffered at school and the job demotion if age sixteen you see the board ruled that the immigration judge properly held its a position was conviction for misconduct involving a controlled substance in the third degree constituted an educated film he is a drug all right thank you for your argument she doesn't meet the standard it's not a felony and that was the crime that was focused on but it wasn't concluded and that the request was that they go back for further evidence or a determination to defer to determine whether or not it was an aggravated foul on that issue has never the only thing she can show is that she doesn't fall within a crime that would be prohibited under the controlled substance that's because there is very very clear immigration cases you need in the national approach to the federal controlled substance that you're not going to look at the individual states someone has to be convicted of a crime under the controlled substance act that has to be an equivalence here there's no evidence only rational have the burden do you say you're conceding she could i mean the argument he made you would know what you were convicted of and you could say well i was convicted of having you know allergy pills and that isn't the same as convicted of cocaine doesn't she have to address that the ninth circuit case law does not there's no case and i would challenge the government to come up with a case that indicates there's a separate standard in this context for an immigrant burden who's trying to remove correct but if we were able to go outside of the record of conviction we would have a totally different standard in this context in immigration cases and that hasn't been borne out in the k