court's questions the first being the shepherd documents issue the second being the new lorenzo decision from another panel in the third being that the on bank decision in march in a slow pace is distinguishable do we need to hold this for i don't think so your honor because if you reverse because there was insufficient there was no evidence to support the b conclusion that there was a conviction because there were no shepherd documents and you remain and it whenever happens to lorenzo can be applied then and so if the government's the government has a filed only a petition for panel rehearing as i understand it not on box so if the panel hears it and has a new decision that can be applied on the ground but i would leave it to your discretion the one of the things that i have considered at every juncture of this case is the fact that my client is in detention and so there is a tension between obtaining perfection and the outcome in her case at this level versus moving the case along she's been in i'm sorry she's in detention right now it's like for you to give me the path what are the options here we it goes back to the b i a to make a determination on whether or not based on this shepherd documents the case can be made am not quite sure by whom i think we have a big issue and who has the burden of establishing you know that she either was not removable or that she was removable well yes candidly think it's unclear and that issue really isn't in front of the court today because it's in a way hypothetical about what would happen but let me share my views with you to the extent they are helpful the regulation that shifts the burden of proof says it's only when there is evidence that a ground for ineligibility for relief or removal may apply that's not the case here because under this court's ruling in young versus holder among others the shepherd documents rule applies equally to eligibility for relief from removal asked to remove all itself that means there is no evidence in this record therefore the burden didn't shift so now how they can't they can't immigration proceeding correct in this context that's not it not can cannot be considered evidence it's not a shipper document and that's only because at this point as i understand it what you really telling us is that we don't know what the petitioner statute of conviction is if if any of your opinion diddly i have searched public court records and been able to find it in the one of the reasons the aliens admission can't be used if she may not understand what happened she may be describing what was alleged and not perhaps what was resolved by a plea bargain with a different charge whatever we don't know and it really takes a legal analysis that only what the court can do based on conviction documents and that's what the sheppard cases say over and over anybody ever exhaust the issue where the government presented sufficient evidence of a conviction it wasn't she didn't argue that but the b i addressed it and i looked at this carefully wasn't raised by the government as long as the b i a discretionary relief that's correct and so in order to this she is there any indication that she's going to otherwise qualify for any of that because she still has to be a person but a good moral character once but she's not taking care of them now so how do we show that they would be but snap butt i don't know i think it's not before the court your honor i think that's something that she has to be given the opportunity to prepare that record  kind of media is there not and interested in giving your client relief it doesn't seem like sometimes they mediate these things are they well she wasn't allowed to present a case or order so that the judge the procedural posture here is a little bit interesting and i important to keep in mind that the i j a as he has his obligation with an unrepresented respond it was sort of doing a screening process for issues and with regard to cancellation of removal he stopped as soon as he concluded based on the hearsay statement from the government attorney that she had a conviction so that the all the circumstances that would go into that weren't vetted so i don't i can't and frankly i don't think it's fair to say that the i j a wouldn't be a c taking care of her kids for three years but for cancellation you have to she'd have to those are her qualifying relatives right that would be my understanding yes but that i it's not something i have fully investigated and i can't present to the i want to go at this a little bit differently documents only through court conviction documents not through any aliens i think the respondents admission not through any other evidence for that matter in fact it was almost directly on point to this case the  guess there's two cases your honor so actually this issue was discussed in the government's refund reply so i didn't have a written response and in preparing for argument i noticed that young versus holder not the young case no you play that's the on block decision from two thousand and twelve is specifically among its i think four holdings says that the shepard rule applies to relief from removal and i have a quote for you from page ninety five extraneous evidence such as police reports or aliens testimony cannot answer the precise legal question of the nature of a prior conviction and so that really controls on back with regard to the chuck fung young case the government has not described it correctly if you look at the last two paragraphs of that decision it also addresses relief from removal not just removal and says that the shepherd will applies equally as well but really young versus holder would be that the benchmark i believe for the panel so so what i want to hear describe is your past authority for the proposition that the government is required to present admissible evidence of a state conviction when the alien and met that conviction young versus holder the sheppard case from the united states supreme court chuck fong is young versus holder from this court and also cisneros pris all of these are cited in the briefs ok so you also claim that she didn't knowingly and intentionally waive your right to counsel yes you're wrong i'm pretty sure that that's probably giving the government a hissy fit over the situation in that can we consider her claim that she didn't knowingly and intentionally waive her right to counsel when she didn't raise the issue before the b ira and how do you get around sicker a versus holder it's i mean there were some general comments by the immigration judge that might be improper but then you've got her in a situation where she watches for other people and they some of them a and so it seems to be that you're suggesting that when i j miss advisors the petitioner or maybe kind of under overstates things the position the petitioners waiver or counsel is per se not knowing intelligent and per se roles always give us pause understandably i think this these facts here are important again i don't know that this would be a rule for all seasons the comments from the i j a were really pretty extraordinary and suggested to my client that it would basically be impossible for her to get discounted or free counsel and that the judge cheat the judge personally didn't know if it was a good idea to have counsel and that the judges disagree on the  counsel so you have really expressed misstatements by the i j a that discouraged my client for all she knew the people who want to get counsel had money my client doesn't have any money and so with the i g having told her with no money you'll never it you know it wasn't something that we're kind of speculating here that well i understand the trust me i understand the problem i think the key here is that my client's notice of appeal should be liberally construed and she did express in a very imperfect way that she felt she wasn't able to tell her whole story and that could be construed as saying she needed assistance she needed assistance of counsel i mean any lawyer who was assisting her at this hearing would have advised her about the shepherd ruling the shepherd rule for example and that would have led to a completely different outcome right so why don't you just give us shore you know since we have to write a memo we have to write an opinion all right write that for us to give you the  want yes your honor so first the admission of my client is not evidence of a conviction there is no evidence of a conviction is record under sheppard so then you move to so that requires a remain and at a minimum and then the panel has to decide to apply lorenzo now or not i would urge you to apply lorenzo in and and remain with instructions that the claim statute of conviction does not disqualify my client for relief from removal and we know that when we don't you know  well that's what the government asserted well i understand but i'm saying i can go along with you to the point where you say the admission is not enough because we can't get it to that it's not enough for cancellation of removal i've got to send it back i can also get it where the record does not say what they record a conviction is so it seems to me at that point we re mad to let the government do their duty and then at that point we decide whether to rent applies or light and that gives the pamelor until enough time to think about that fair enough i think that's a very reasonable outcome for this case your honor and i think you could equally as well say that that the government having posited this conviction and surely having had the means to provide proof of it existed and having detain my client for three years shouldn't get a second chance at that so that with regard to that alleged conviction the panel can rule on the merits under lorenzo that is not disqualifying and also can rule on the merits for an entirely different reason that martinez lopez is distinguishable because this is the statute of legit conviction here eleven five five zero a of the california health and safety code is turns on use or possession and as we have briefed under the celis case from the california court of appeal in another case proof of a particular controlled substance is not required under that statute therefore unlike martina's lopez it is impossible to conclude that section eleven five five zero creates one crime for each controlled substance even the government in its briefing now i think implicitly concedes that you can get a conviction as i guess in terms of we don't really know i mean it's on the run so what's your position on that should we wait for it or what i think the court's going to have to wait for it because i don't believe that the other issues have merit well if for example rendell then maybe you better talk to me about what in this record would indicate that petitioners stashed a conviction is anything but first of all on page sixty three of the convictions and up before this court in other words they had no bearing on his or his act that the that the council gets up and says this i don't argue and present no record of anything and they are the count here the petitioner is in there without any counsel without any way to to fight it says basically yeah i had a crystal meth problem and i'm to find that's enough evidence to say what the statute of conviction is well first of all that's the got satisfies the government's burden the government has no burden the government has no burden if i may continue on yeah you may when it's movability the government has a burden to prove the conviction by clear and convincing evidence on the stand but when it's only relief as this court said on bank  evident there is her admission because i don't admission and said that is correct and it doesn't really say what she admitted to it only it says is this government says you have a drug conviction is this government indicating that she had a forty four and eleven five fifty and a four fifty nine that is correct but the judge specifically asked about the drug conviction she said yes now she could have said your honor i don't know what you're talking she could have said as when she was asked have you received the notice to appear i don't remember i don't think so here she was very clear when the ice counsel stated she had a conviction under eleven fifty a he just had a yes the bottom line though is that that indicates this something there when that indicates she could have said i don't know what you're talking about but on do young and on to twelve forty point eight know it was during the gun of his which is almost on all fours with this with a petition to said i'd like to apply for cancellation of removal and in his application no shephard documents just in his application he admitted her own conviction or maybe was a cocaine conviction that was found to be enough to indicate not to proof or remove ability but to indicate and when the burden is or when burden becomes on the plaintiff on the petition excuse me when that happens and that's all we're saying in this case she had the burden and it's only for cancellation which by the way she never requested conclusive that absence of any judicially noticeable evidence well i don't have any traditionally no split and you wish i could remember that prior to this case in that duran case this court said that the admission is is enough there's no reason it's not a she would have said had she simply said i have no conviction i don't know that would have changed everything but that's not what she did she admittedly a conviction which is in int so you think that what happened here is a fish it just her response to the i think crystal that that's enough we think it's enough to show that the record evidence indicates a disqualification for cancellation of removal and that's what the statute and the varied require indicates not proof which we would need but it gets seems like there's that yeah i'm sorry that young the young case y o n found was the evidence was not sufficient to prove a remove ability conviction just not there was to one clear but it was to place the burden on the here that bat but now let's assume that you're saying i what i understand you to say is that when she there she was told what was in iraq what was on a rap sheet and she said that she did have this crystal conviction which the eleven fifty is the only drug conviction of the three and then that's clarified it's crystal meth at that point there's an indication that she is not eligible for cancellation of removal so then it would be it shifts to her but now if lorenzo becomes the law then that would be a basis for even though she admitted it that possibly  ok we're for purposes of i mean obviously the petitioners arguing that there were no shepherd documents that it's not efficient at that point you argue that it indicated that it shifted to her so that's not a problem i understand your argument to be that based on the totality of the circumstances and the fact that she didn't previously challenge her waiver that there was a knowing that you don't think that their point to establish a per se role on knowing intelligent you're opposing that but you are conceding that it should we should wait for lorenzo to see whether her admission if she if she admitted something that isn't the petitioner question the disability this is the visibility issue suggesting that it wasn't divisible rather than it is divisible now if though they say it's to visible but guess what we've got enough documents in there to suggest that even though there's a meth conviction it may not be the same meth conviction so all i'm saying is how is it waived when he is just questioning divisibility which is the same issue i may have misunderstood you but there were no documents at all submitted in lorenzo why they just aren't and i understand that but we're still trying to decide the  court if we get to the visibility issue and any issue thereafter it seems to me that other cases in my court would say that's enough to give the petitioner full advantage not just call it waived because he's  divisibility and not the effect of the after divisibility what that's going to do but that the whole issue is the same my guess from this is that we will not be found if well no i'm just trying to i mean if i made your argument how i believe you read i've made your argument a couple of times and trying to get to the result i want to get to we're knowing what to do i'm trying to figure out really whether there's a waiver or there is of and i'm trying to get your best argument to the best or the we've given he raised the visibility as to a totally separate point he could have reason as to the isomers as did lorenzo's council he did not we put in by either side now in its petition for panel we hearing the government has asked the court to take judicial notice of two declarations which talk about the isomers in in a we do know that and her net united states versus hernandez which was also possession of methamphetamine the government put in asked for judicial notice of the same two petitions two declarations court granted that because there is no evidence in this case one way or the other we only have her admission which again we say was enough to indicate and therefore she is the bird i wan come back because i'm just been looking at young y o n g and i think you said something that's not consistent with my understanding or what i see of it because it seems like young it's has admission of conviction during removal proceedings and an idea and identified conviction document alone is insufficient under the modified category approach to render petitioner an eligible for cancellation of remove all that that has been over lorenzo says if we x we have to accept lorenzo right now unless we decide to wait i'm trying to weigh why we would wait if she's in custody and let this play out before the b i a and what would happen there and i guess it seems they would sort out this whole burden of proof which i think is going to be very messy and even more so because i think y o n g young is still good law and young y o u and she has been called into question in light of the now let not the case that we've taken bach i believe and so i'm not quite sure why we would let this case proceed while all of that gets sorted out and then even you know so that way she's not waiting and then you know we come up with something that you know supports or not that can be taken up at that point in time so i think your answer to that is what and i have to look at it but i'm curious if your answer to that that it would assign a burden of proof to the government that you don't accept that is yes yes but that would get sorted out on who has the burden of proof down there the burden of proof is by congress congress you know i know when you say it was her burden of proof let's say it's her burden of proof i think it seems like freestone what we have here and if  still good law she's willing to take that she i don't understand why she would be willing to take that risk so why don't you solve it not start so why would we let that play out while and depended upon documents that was  issue that we didn't have the issue of an admission the way we have here it's different as to by the way the detention that's a totally separate issue that's a hate is that's not before this court and well i can fully understand it's not before the court but it was asked by one of my colleagues here whether or came out that she was in detention but we would say that that's not a fair reason to delay this this case any further because she has a different round to get there and they have not raised it if she wants out of detention she's got to go through his b s well i'll tell him we're going i do have a question about that ok if you're in detention aren't s can you just say ok just send me home yes or she could always do that that was so when you're in detention like this what's it like i mean it's i mean when they're in detention is it like being in jail or is what sort of facility is she and i think i'd have to say it's like being in jail i don't think that's what the government would want but detentions i mean i don't know the conformed no but i mean it's not like you're living in a house and you're wandering around out on you know i just don't want to proceed pursue this anymore i'm gonna drop it can she get out and get deported to mexico yes she can be removed from school most immediately yes so but as long as she pursues the of the one so i'm assuming you know sometimes we ask people about mediation or you know that type of thing there are issues where the government and counsel reach they they look at it and say well i think that you would get convictions that's going to be tough there's also the hardship issue she's going to show extraordinary extreme hardship i believe i believe it was you judge smith who said she's been in detention for three years who kids are doing that i apologized she's not going be able to show or at least it doesn't appear that should be able to show the hardship remembering all the time that she's been there she hasn't submitted any documentation asking for cancellation when she went before the board aside from these convictions so from the government's perspective mediation that's it make any sense to you know i don't believe it would be effective you know you're being candid with the court supposing this my when i walked in here i thought about this and i you know i'm just giving it a bit of example and i want you're telling me why i'm wrong ike frankly i'm not can i am not convinced that this record is fishing for me to suggest that her statute of conviction is eleven fifty five five five zero i think there's enough in there to say what she admitted to and i think there's enough in there to say that when she admitted to it that there is an admission and so therefore i'm worried about on a cancellation of removal whether that's a binny  what kay says that i what level of proof that i had to have here to make sure that we can get to this particular point on it when i don't even know fear street california lawyer it's eleven five fifty having been a well i don't have street corner but i am i ok i got eleven five fifty because i'm going to st lawyer right next to do it otherwise we're talking something a little bit higher i understand and this is the least of the offenses that she could have been one way and the other whether it was use and that's what she admitted to that's what the r j asked him about or it was worse she said crystal meth that is the key here she's got some sort of a crystal meth conviction again if you ask the question do you have a conviction on crystal meth and you have no idea what they're talking about or a controlled substance conviction you don't say yes you're on a crystal meth you answer i don't know what you're talking about no i don't have any under subject arguing that you're just arguing your side of the issue i'm suggesting what is the case that you would recite is none published case being very candid with the call i mean i spy was about today don't i understand it's published how can i get there well it's still persuasive it's still site young now and maybe i mean is that easier for me to send it back and make sure that this is that we've got well we've got why because we know for sure what the record of conviction is and we know for sure that she's admitted to it or she has admitted to it when you get up here again it'll be a lot easier for me to apply the issues that are in front of me and include know what to do with the renzo because it might be done if you do send it back i would caution a court that petitions said oh  can never consider the drug conviction again we would very much oppose that if it gets sent back then the government has to be able specially in life how can it now going to be that way of petitioners up here asking me to send it back for that very reason i can only point you to his brief he said collateral stoppel and said the government does not have the ability to reprove its case well why don't you why don't you let's just because we don't right so the immigration judges in these situations since and i'm just stopped me where i'm wrong i mentor stan and they have a whole bunch of people that come in they go over what the allegations are the government lawyer sitting there and then if they say well and they have a rap sheet on the person it is or anything if it so for cancellation of removal is or anything that would preterm at them from going any further and they advised them of counsel and all of that so this would there's a lot of people there at this particular stage right there with three well but i mean if this is not it's not a prove up hearing pers say what the procedure that we're hearings when you're determining whether someone can go forward with a particular reading you know whether it's going to go forward now you said if she said i've never heard anything about that then it wouldn't have been preter is at that point it would have been put over for a hearing or whatever discovery might come to this type of hearing other than with a rap sheet and all that because my recollection of you know records of conviction you have to order those you have to get certified course it is correct that the government did not have since she's not in question anything the government did not have the conviction documents at least that's what the record seems to indicate they had  judge well that would mean that you would be eligible for cancellation after she admitted the conviction and that by the way was not hearsay that was an admission once she did that the government never went back to get the documents because she admitted to the conviction had she said no the judge produce a government what documents do you have then we would have been in a situation where the government had to go forward and get the documents why because it would no longer have indicated once she said no the then the government would have the burden to prove the conviction ok so if we don't accept your version of this then the government would always have to come to hearings with documents ordered and be ready to present them at that stage and not wait to do sort of the prime the facia indication you have a rap sheet that's what but then if you go on if they contest it then you order them that is correct but had she said i want an attorney from the start things or when she would not have gone to the hearing that day then he wouldn't carry over government and all  waited to see because remember she's not charged for movability based on his conviction she's charged and now we're going way over but then ok so if they're asking for a man and then does that necessarily  what your concern on that is that it would necessarily include a finding that you failed to meet your indication burd you failed to shift the burden and therefore it would stand for the proposition that every time the government there that you always have to have all of those documents readily difficult you know yes background but it looks like at the are sixty four the i j a referred to that ministry document as an information is that what you understand i mean there's some reference that it might be a rap sheet information is the charging document yes it what it was was the government did not have the conviction documents with her i mean she you know she was not expecting to go forward at that time and again this was not a situation where the petition  asked for a cancellation she has never asked for a cancellation that has never been before the a b i a or the i j u i j simply said if you do have a conviction and do you have this conviction then you're not going to be eligible for cancellation that was the entire state of the record ok so if we don't agree with you that she waved around sound i say but we then your position is hold off and wait for lorenzo yes and if we renzo goes her way her way then this case goes back in our opinion and we would be allowed to what the government failed to do in lorenzo that is to say make the case before the b o h yet and agency decision the two declarations i cited before stated before we would have the chance to produce yes then the methamphetamine conviction will suffice then the only real issue is the admission that we've been arguing about here about you back and forth will that be sufficient to indicate that she's not eligible  if we need more time with you will take more time with you are just really i think trying to understand all the implications of what all of you are asking us i appreciate that and maybe you want to  your if you're making an argument for we'll just go ahead and we mandate and just give her a chance and that's a good idea i think the government has raised that implicit in that it would be an alteration of what they say would be the burden of proof case if you're really arguing for this to go back you're saying they didn't meet the burden in the first place they had a burden in that hearing and therefore they don't get to meet the burden of my client is out that's your argument yes it is and but know i want to be your good lawyer and i that's why we were glad to appoint you for this position and your argument was pretty specific about this that's why i was pushing you a little bit and you didn't quite get there th particularly because the client has been in detention for so long but that shouldn't be a barrier to her getting a hearing on the merits so if you're not convinced by that and that would prevent you from remanding it then i will withdraw that argument right here and now and we will not assert that on so that if she can get a hearing on a transit or apartment you will take any job that you can get in the door to have a chance not to fight i mean no i mean you're going for everything but if you don't get everything you exactly you're well that i just want to respond to this this concept of the government being burdened by having to produce the documents at this hearing i think that's not a fair point to be candid the requirement to produce these documents has existed for years the room in terms of when you come the first time and then if you go over in terms of it it isn't that easy to request things and then people have to respond and then good lawyers like you go gotcha and so it's there is a reason that if you can't have all of them ready to go and every single file i don't i don't think that that is realistic agreed but not then and there at that hearing we could have been continued to say ok now we have  reason to think there is a conviction so let's get the conviction documents and confirm it i mean the courts have said over and over the stakes are really high in deportation cases and so they should get it right and there is no expediency exception to the shepherd rule from  wait i think i had one other case on the yeah ok so this matter submitted the last matter to your normally me versus us united states i r s one seven dash one seven two one two