and and whether the board of immigration appeals erd in finding that my client was not eligible for cancellation or remove all i first would like to explain why the florida statute is not visible there under the florida statute the florida statute can be violated in several ways including selling a new factoring or delivering a controlled substance if those different violating the statute were considered elements and the statute is not divisible if they are considered different means of violating the statute than they are considered then the statute is not divisible the way to tell whether a statute is divisible is to see how the prosecutor must charge the case and what a jury must find in order to convict  if the if the prosecutor must select out of the many i don't the various ways of by leaving the statute must pick one of those ways and the jury must find unanimously that the that the defendant in the case we addressed the divisibility of florida statute eight ninety three point one three which provided in the relevant part that quote a person may not sell manufactured deliver or intent to sell manufacture or deliver a controlled substance we haue recently that that text quote delineate different from what you have here the statues are similar but the difference in the cases so if we were to follow that analog we would conclude that this florida controlled substance that you was this is a ball rather than indivisible would that not be right i say no your honor and the reason is because in so many if we applied that holding to this case in the statute if that were the only way to do it right but i'm just asking if that were a basis you would say well yeah that's yes certainly a reasoned way to conclude that the statute was the visible making the elements versus the means in our service yes your honor if that were the extent of the proper analysis to determine ok so why would that not be at least a good starting point for the determination it's not about bad starting point your honor but it's not the end it's not the end of the analysis inspired ho the court relied on three florida cases where the courts held that those selling manufacturing delivery were elements in this case we rely on to florida cases where we can garner after a proper application of the kind of work on approach that day that the statute is not visible and the difference in the two cases are referring to are burson which are cited in the briefs and right  in burson especially the court referred to the that those those different ways of violating the first element of the statute as theories conduct conduct and methods and did not look to what the prosecutor must charge in order to sustain a conviction and what the jury must find if the if the prosecutor must charge of only one of the ways of violating the statute and the jury must agree not unanimously that that is the way that the statute was violated then it is an element it is of the visible statute but under the burson and right the outcome would be different in burson the defendant  the defendant in that case was charged will say oh and the instructions charge that the jury may convict that the fan in that case if if the defendant possessed purchased sold or delivered a controlled substance the jury was not required to find unanimously on whether the defendant possess purchased sold or delivered and and in that case they found the defendant guilty as charged so that demonstrates that that and the instructions charge that the jury can convict him if he sold purchased manufacture delivered or brought a controlled substance into florida and in that case the jury entered a general verdict of  guilt another look at the florida jury instructions to prove the crime of trafficking ok in the illegal drugs the state must prove for our women's beyond a reasonable doubt and then if you look at this this is standard jury instruction that's been approved by the supreme court of florida and they talk about defendants know what we saw purchased manufactured delivered brought in to florida possessed a substance substance was then you listed the quantity of the substance and virals four grams or more defendants knew the substance wise and i say it was oxy code on the instructions and require the judge to define the alternative methods of commission requires was it cell was it manufacture was it deliver was it possess and the instructions contemplate  an instruction only on the method of commission commission as applicable and requires the prosecutor to try just specific violation to select the relevant elements from  list the supreme court has told us that a divisible statute is one in which a prosecutor charging a violation was generally select the relevant elements from its alternative list and the jury as instructed in the case will make clear must then find the elements why doesn't that support the proposition that this statute eight nine three point one three  is in fact divisible rather than indivisible under divine misapprehended the instructions and if the answer is no did they not also yield some insight into how florida looks between what the what the judge must instruct and with the prosecutor must charge if the prosecutor is not required to pick one of those different ways of why even the statute under supreme court law and even understood a then it's not divisible by statute the the jury instructions that we included in the appendix on page eleven this three elements which i think more closely reef reflect what what the defendant or the prosecutor went by at the time the miss seemed thrown was was convicted and and it's a device a statute in two three elements one is the that the defendant knowingly sold purchased manufacture delivered or bought into the state or possessed certain substance the second one requires that the prosecutor list the specific alleged substance and then the third one requires that the amount of the substance be a specifically alleged the first the first element does not or the number one does not require the prosecutor to pick one of those of different ways of finding stuff and also if you look at the at the actual assuming that the statue is divisible you look at statute is is in the visible because assuming that the case had gone to trial the jury would not have been required to find unanimously the missing thrown vital lead it let me ask you this question to the extent that we were would conclude the statute was divisible rather than indivisible the next question we would have to address is the effect of a sin trans burden of proof on the modified categorical approach or you're going to discuss be excluded from qualifying assuming you meet the other two illegibility quite are you under twelve twenty nine b the only way to be excluded from qualifying for cancellation of remove all is if you have been convicted of an aggravated felony in the way to determine if we're looking at the modified categorical approach then we are going to expand our inquiry us and look at a variety of documents in the record of conviction including the charging document the plea agreement if there be one the plea colloquy transcript if there be one undisputed facts perhaps in the pre sentence investigative report et c in this case whatever else you can agree on all of you agree that based on the record that we have it doesn't yield an answer to the question right yes you are so long as the burden of proof is yours then why would not the b i have been right that you had failed to carry your burden once we were looking at it if we were to look at disagree with your argument ok about divisibility and then we got to the second question of whether or not you met your burden of proof you would not have met your burden of proof would you yes and the simple answer you would have met your burden would have met a burden of proof because under this third prong of the cancellation statute the way the way to meet your burden of proof is that under the consider the burden of proof in within the categorical categorical doing not apply the burden of proof application to the modified categorical approach you do not your honor the well for circuits have said you do fourth the seventh the ninth and the tenth that i've suggested that we ought to be doing that there is contrary law as well but why would those four circuits have been the wrong in suggesting that does the prosecution prosecutor necessarily have to prove to sustain a conviction similarly under the modified categorical approach and i think this is the point of contention with with with the government is that they're saying that the same approach the inquiry is view looking at the conviction record what would the jury necessarily have to have found in the order to convict the defendant so the nature of the inquiry is the same what the jury necessarily had to find to convict because inquiry is the same the necessary language you always assume that the person is convicted of the least culpable conduct because misanthrope was charged with  florida statute if assuming that and you were us assuming that the key to the statute is divisible rock we're applying the modified categorical approach if the jury if the case had gone to trial based on the conviction record what and viewing the conviction record we ask ourselves what would the jury necessarily have to have found under this this conviction record to convict missing thrown because the least  culpable conduct in the statute is possession then possession does not qualify all right i don't mean to cut you off but you've got over your time in there very much want to reserve your full three minutes for a bottle we've given your car a good chance to be heard as a disqualifying aggravated felony but your best authority for that the best authority is that is the supreme court's on point decision in moncrief the government argues that is just a removal case not a cancellation case but that's not correct and that's dispositive here i'd like to walk you through exactly why that's the case the supreme court explained in moncrief that adrian moncrief had been order deported under two separate grounds the first as a controlled substances offender and the second as an aggravated felony and the court explained in the first two paragraphs of moncrief that it was undisputed that adrian moncrief was removable either way as a controlled substances but it said the question of whether he was an aggravated felon was still relevant because that would govern whether he was eligible to apply for discretionary relief and then it applied that analysis at sixteen ninety two of the opinion when it said having been found not to be an aggravated felon full stop the court didn't qualify that mr moncrief is eligible to apply for discretionary relief quote assuming he satisfies the other eligibility criteria and then it started the criteria having to do with years of presence in the country but not the criteria having to do with absence of a disqualifying conviction but is there no an important distinction to be drawn from the fact that moncrief the holder was exploring the issue in the context of a categorical approach and it makes all the sense in the world that the answer would be a legal rather than a factual one when you looking at the categorical approach but moncrief seems to me to be limited and maybe i'm a separate  to reaching a conclusion about a case that arises under the categorical approach and what you arguably have here depending on how we address divisibility vs into this ability which is not an easy question for me but if we were to say that you folks are wrong about that question and apply a modified categorical approach why would moncrief provide the the rule of the decision when it was a categorical mana modified categorical approach if it's modified categorical isn't this so facts specific in fact laden that burdens of proof ought to rest properly with the petition just like the fourth the seventh the ninth and the ten circuits held reports on that your honor the first is that this court in denial already explained that the modified approach applies the least that's criminalized presumption in exactly the same way as the categorical approach and that makes sense because the supreme court in the camp explained that the modified categorical approach is not an exception to the but merely a tool to implement it and it said that the modified categorical approach is not a modified factual inquiry it's not an evidence based inquiry but rather it applies the same basic methods and answers the same basic question the categorical approach and that question is was the non citizen necessarily convicted of the disqualifying offense she doesn't have to show that she was convicted of possession she just had to show that she was not necessarily convicted of the disqualifying offense and then the supreme court itself in moncrief at sixteen eighty four in the very sentence directly after setting forth the least as criminalize presumption set forth the modified categorical approach as a qualification to that presumption it's the way to rebut the presumption but it does not operate outside it so that this court has recognized that you believe the fourth seven months intend just got it wrong the fourth ninth and tenth circuits were pretty moncrief decision so they didn't have the benefit of the supreme court's moncrief the only court to have grappled with this decision post moncrief is the first circuit and saw saida with this court which the government asked this court to create a square split with the seventh circuit in sanchez was saida a purely legal and i know that's the question i'm having trouble with because it looks to me that in so far as the modified categorical approach says now we're going to look at some specific data specific factual that including the charging instrument the plea of guilty the text of the  approach and there's a body of data out there we're asking the trial court to look at that body of data and tell us what it means to infer facts from that why isn't that fact based rather than what you would characterize as a purely legal determination because there's no doubt that there are documents involved in this inquiry that's that's of course not at dispute as distinct from the categorical inquiry of course in the modified not only other documents but when you look for example at a call look we have a transcript that may be very extensive how you interpret that is so specific factual in nature that you're asking the trial court to say are one of these findings amount to give us a finding about what went down in the trial court so and there could be a factual dispute as to what the record meant there is no dispute because the parties agree that the record of conviction is ambiguous and once you've reached that we don't have the records the point is the record is better and here we just don't know but we're talking about who has the burden and if the petitioner has the burden and the burden is fact laden then why wouldn't it be fair to say that you lose so the way we would any time that the burden by law is imposed on one side and it's on able to meet it so the petitioner certainly has the general burden as the cancellation and that burden applies with great force to the deeply factual questions that are involved in the cancellation of removal and corey like years of presence in the country and like continuous presence but as to this question of what an ambiguous record necessarily establishes moncrief change the analysis and it said the question is was the non citizen necessarily convicted of the disqualifying offense not what was she convicted of but was she necessarily convicted of the disqualifying offense and decamp said this is not a modified factual or evidentiary and kori but merely a tool to implement k you doesn't this question turn on what you're looking for in the record as opposed to what the facts are and that was what you're looking for is evidence of the conviction nature of the conviction is that is that right that's right what the determine is whether she was necessarily convicted of the disqualifying offense the court presumes going in that she was convicted of the least of the acts criminalized which was here possession and all parties agree that that's not a disqualifying offense and all parties further agree as the government again reaffirmed a page two of its supplemental letter brief that the record of conviction here is ambiguous as to which can pronk she was convicted under so the question is soley was she necessarily convicted of the disqualifying offense  manner of evidence can introduce her testimony as she did here at the discretionary phase which the immigration judge found compelling but at the threshold stage she is limited only to the shepherd documents and that's part of the reason why this is a legal inquiry as the first court for the opportunity to participate in this argument court's decision in spot dictate that miss and trans statute of can second which of the act is re a misanthrope was convicted of is a factual question that she has the burden to establish by statute because she has not done so she has not established that she was not convicted of an aggravated felony for cancelation regarding the first issue under mathis for a statute to be divisible it must set forth alternative elements in the disjunctive that are individual or that constitute individual crimes mathis defines facts versus elements it defines facts as real world things extraneous to the crimes legal requirements they are circumstances or events having  legal effect or consequence what are the actus reus here are not facts they are elements elements are those things at trial that are what the jury must find beyond a reasonable doubt to convict the defendant and out plea hearing there what the defendant necessarily admits when he pleads guilty as i said here state case law the pattern jury instructions and spa all point to this statute being divison in person versus state the defendant was charged only was sale but the jury was instructed on additional elements including purchase and possession which he could not have been convicted of because he had a valid prescription the case not only shows that the alternatives are charged individually but also that they constitute different offenses because there are firm of defense sorry they constitute different offices because there are firm of defenses to specific alternative additionally the pattern jury instructions which are set forth in pages thirty two and thirty three of the government's brief treat the alternative act as a similarly to how it treats the different controlled substances which are separate elements underneath the statute they are defined separately under different subsection the pattern jury instructions treat the different the same way as a treatment can for me ask you a question about this statute and one of the reasons for me that it's a hard question if you look at the actual language and eight nine three point one three five one see it says any person who knowingly sells purchases manufactures delivers brings into the state or is knowingly in actual or constructive possession of four grams or more of oxy felony of the first degree which felony shall be no known as trafficking in illegal drugs the fact that the statute specifies that all of these may be seen as methods of committing a single offense to a trafficking in illegal drugs would suggest would it not that selling purchasing manufacturing delivering bringing into the state and possessing all methods or means of a complex shing trafficking rather than as separate elements creating distinct offenses that could be one indication however how the state actually did it seems to me that's the biggest hurdle you face interpretive hurdle here yes but the question is not necessarily hal it's with an analytically and linguistically similar statute and found that that statute was also divisible and the statute i except for possession with intent to distribute manufacture regarding the second so moncrief dealt with the categorical approach it was a removal case which is important but more so it deals with the categorical approach the categorical approach is applied or can be applied twice in the overall analysis of whether a crime constitute a state offense constitutes a generic offense the first step is to apply the categorical approach comparing the elements of the statute with the generic offense you're the statutes overbroad and we argue it is divisible and so then the question becomes well what which of those elements what she convict and that moncrief they knew what he was can the court knew that he was convicted of possession or i believe it was a delivery but they knew which of the elements he was convicted of that was not a question we have that question we need to know which of the six options misanthrope was convicted of so that we can then reapply the categorical approach to that element or those elements that convict course when lay out all these other things which shall be known as trafficking in the illegal drug punishable as provided in the sections and you don't have that in the noted in its cases about the categorical unmodified categorical approach it's not the name of the statute that determines whether it constitute right again and so while this offense may be named trafficking in illegal drugs that doesn't determine whether it's divisible because this does set forth six different actors freya in the disjunctive that are treated separately that are charged separately in case  text of the statute itself yes and i'm saying it's analytically similar to a title of the offense even though it's not the title of the statute tell me about how florida law eliminates the issue so in both person and right there both jury instruction cases and they indicate that the actus re a each constitutes separate crimes because they're charged in instructed separately and because there are formative defenses to two of the at least two of the elements if one has a prescription one cannot be convicted of possession or purchase as shown in person and in right the issue was that the offended or the defendant the defendant was not charged with bringing into a state but the jury was instructed with bringing in as if these are facts merely and means that under mathis these are purely real world things that are extraneous to a crimes legal requirements that's the state cases here don't show that they don't show that bringing into the state in right was something extraneous that's just a circumstance or an event having no legal effect or consequence therefore these are elements and not separate or not just different means of committing the offense it's not akin to whether it was a house or a vehicle it's specifically the conduct at issue here which are charged separately defined separately in the jury instructions and instructed separately a but in both person and ray the jury's returned a general verdict that said the defendant was guilty as charged and the charge of conduct included all of the various axes in that selling as well as possession yes it did and why doesn't that indicate that the statute isn't divisible first in both person right the question was fundamental error because the issues raised war they were both instruction issues which had the contemporaneous objection rule and so because those weren't objected to the question was fundamental error that so flawed the proceedings that reversal was necessary and neither person nor ri challenge the use of the general verdict form so it's not known whether that would be improper so the issue in those cases though is that because the jury instructions didn't match the the indictment right yes  that's a different issue it is it's a different issue and neither the court didn't make any holdings regarding the use of the general verdict from there so your view is person doesn't really shed any light on this question it does still shed light on that question the fact that there are so many how does the fact that there are all affirmative defenses to two of these options and the fact that he should have only been are the jury should have only been instructed with sale instead of any of the other options shows not only that the prosecution does charge these individually but also that these are treated as different elements i've never heard of an affirmative defense to whether it was a house or a boat when it comes to burglary but these are separate affirmative defenses specifically to individual options or alternative  what about the instructions do they help us yes they are and and they answer yes they do your honor the instructions they set for as i stated earlier they set forth all six of the act is free of the same way they set forth the controlled substances and from the statute we know that the identity of the controlled substance is an element each separate controlled substance is set forth in a different subsection oxy code on here w at subsection c one the jury instruction for the pattern jury instructions set forth these controls substance by a bracket as it and it treats the act israel in the same way it sets them separately in brackets additionally it says further down the pattern jury instructions give as necessary under the definitions and showing that the prosecution or the the co gives the jury instructions specifically on the different options charged and that indicates that these are separate elements that have to be charge not real world facts not things  extraneous to the legal consequences of this offense in response to mr corrales argument about the jury instruction that the chose three elements so the jury instructions state that three elements are required but how the state defines the word element is not necessarily the same as how the supreme court defines the word elements that's one thing that was discussed in mathis just  calls it an element calls it a means doesn't mean that that's how they treat it under the definitions set forth and mathis and that's the case here if that were the case or if the jury instruction saying there three elements holds and dictates the outcome here then that would also mean that the controlled substance subsection sets forth means and not elements even though those are set forth separately in individual subsets of the statue and are considered to be different crimes and so the definition that they use that the state uses is not controlling as to how it's actually treated in the real world moncrief you're saying that's wrong yes the government does believe that is wrong moncrief just deals with the categorical approach and i like to think of it as there are three different  steps when it comes to comparing to statute a statute with a generic offense in the first one is apply the categorical approach if the statute that the person was convicted of has too many options and some are categorically the generic offense then we move to divisibility to determine whether the statute is divisible which is our first issue here if it is divisible then we need to know which of those options that and then we can reapply the categorical approach those two says seconds are the two last steps there are what is generally term the modified categorical approach so while the modified categorical approach is a legal inquiry it's also a factual inquiry because we first need to know what the person was convicted of so that we can compare the elements if we don't know which elements missing here we don't know which elements miss and convicted of so we don't know what to compare to illicit trafficking we don't know if she was convicted of purchase or delivery or sale and the statute places the burden on her to prove she was not convicted of an aggravated felony and that's one thing that i would like to note is here the government isn't saying that she has been convicted of an aggravated felony the government is saying she has not proved that she hasn't been posted on the burden of proof yes your honor that's because it's a civil proce it's because at eight u s c twelve twenty nine a c for a i the statute says that an alien applying for relief or protection from removal has the burden of proof to establish that she is satisfies the eligibility requirements and then the cancellation of removal statute says that the attorney general may cancel the removal of any alien who has not been convicted of an aggravated felony so she has the burden to produce the records to show that she has not been convicted of an aggravated and he or she have the burden of proof moncrief they should report no he did not  he did not have the burden of proof there but even there in moncrief it was a completely legal inquiry inquiry because we know what moncrief was if we didn't have to go into this factual which  option they knew which option he was convicted of and so then the court was able to compare the two the option he was convicted the elements he was convicted of to the generic offense where is we have one more step here we need to figure out what she was convicted of so we can do that comparison and so if we knew which option she was convicted of then we would be in the exact same place moncrief it but we don't and that's it said that still at the modified categorical we apply the least of the acts and that's true when we get to the legal step of the modified categorical when we reapply the categorical approach to the actual elements of the offense for example if a marijuana statute in florida it was the same as the one in moncrief and we get to the modified categorical approach we'd still just be doing what  moncrief did we're reapplying the categorical but this time to the elements the person was convicted of so it we agree with denying what that the least of the x is a part of the categorical approach but we're not to that yet because we don't know what she was convicted of so we don't know which of those elements to apply the categorical approach miki suggests that there is a prism that this presumption of the least of the x that comes from the very first step of the categorical approach somehow colors the entire inquiry but that's not supported by case law first of all and matheson decamp which both directly dealt with divisibility and the modified categorical approach and both came after moncrief the least of the acts is not discussed that is only a question where we are applying the categorical approach and we're trying to figure out what was it the person was necessarily convicted of no sort of presumption of the least of the acts criminalized by the overall statute flows into the matter modify categorical approach as we're trying to apply it here it's used to determine what a state crime covers it's not a legal presumption that somehow shifts the burden back and forth between the parties home for quick points i have just one short question is it not fact based in corrie to determine what she was answer our question the trial court is asked what was jones convicted on and an inquiry has to be made to answer that question is not the answer to that question a fact based question isn't that a fact that the court has the fine she was convicted of x y or z you would look at the charging instrument if it was a trial you'd look at the verdict form and maybe the questions that were put you look at the judgment in commitment form the ultimate judgment the court entered at the end and you would reach a determination about was she convicted of a or b or c why isn't that a fact based question because even answering that question usually general label to what the person was going to go well for example we see all the time in this court of four or four b analysis question the government tries to put in the trial other prior crimes to show identity absence of mistake intent whatever and among the things the trial court must answer is what in fact was the defendant convicted of and then you'd look to see whether that fact of conviction was close enough to the issues in the trial to determine whether or not it went honestly to motive than ten dead cetera i'm just trying to get at whether or not when you scrape it down to what's a central point this isn't a fact based inquiry to discern what someone inquiry is to find out what first whether the statute is divisible and if the statute is divisible what was the person necessarily convicted of what element in a divisible statute was a person necessarily convicted of it doesn't and the supreme court has said it over and over again it does not matter what the person actually did that's not because that is not the inquiry the inquiries what was the person necessarily convicted of and i disagree with the government that the under the modified categorical approach of the inquiry is not the same in the presumption is not applied again for the in the  in the presumption is again looking at the conviction record the question is what would the jury would happen had to have found in order to convict the defendant and what what they have to have found is which element which is of the necessary elements to convict what they have to have found and because it's an inquiry into the the nessus it's a necessary inquiry you assume the least culpable conduct and i think approach which would apply the categorical approach in this way or the modify category categorical approach in this way you have a divisible statute the record is ambiguous therefore because a record is ambiguous and it and the non applying for relief you have to assume that she was convicted of the disqualifying offense because that is the only way that you would be disqualified for consideration removal if you're convicted under gratitude uterus and all thank you very much thank you thank you both