read determine whether reopening is justified under the under the developments in this court of the supreme court since the immigration judge a september two thousand and nine decision could you start reopen represented a fundamental or sufficiently significant change in circumstances to justify treating it as a motion to reopen rather than a motion to reconsider a factor in law correct but again case law permits motions to reopen to rip to be based upon significant or fundamental changes in  fundamental changes in the law and not trained or stand why it's that fundamental here and also i i'm not sure that i understand why it isn't limited with the kind of change there was here i'm sorry i lost track of the question can you repeat the question why is it so fundamental here oh why is it fundamental well what we have maintained throughout this litigation was that both the use of abstracts under the certain of the briefing in this case before the judge there was a narrowing of how you could use the the abstract but another ninth circuit case i think it was for those so i say that also in the in the brief here categorical modified categories coach had to be done were strictly in the court was treating it and we maintain that those those changes are fundamental in in treatment not just in this case but all cases using court report so you actually have to really have abstracts per say and we have we know what count one said so we you know that count one was not the complaint or the charging document was never put in the record here all we have is is those two documents that are claiming that i characterize them as as abstract when when might be more more like a minute order than an abstract either case well ok let's stop there do you think there's a difference between a minute order and an abstract no no i think they're treated fundamentally the same and i think they're of the front fundamental same nature of what the court has said about this is that those can't be used by themselves they have the used in conjunction with a charging document and whether it where there's ambiguity if ambiguity establishes that there is doubt then that what the ambiguity it look like the disposition of arrest in court action document said it s one one three five one possession sale for sale of cocaine the issue here was what could cocaine be identified by the record it always was we submitted the plea agreement in which he said i did not have any contraband whatsoever but a jury may may disagree with me we maintain that what he said by that was that ok i'm conceding only that i had a controlled substance under the it's kind of like a no zero plea that way except i guess the district court must have gotten it substantial basis in fact or rather the state court from what the prosecutor said again we don't have the complaint in  oh oh is that what it means i thought it was a court document it looks like a document as i read the document it's a form issued by the depart california department of justice i think if are going to use thanks let's  morning your honour's very pleased the court alexander lutes for the attorney general your honour's you judge kleinfeld touched on the heart of this case just a moment ago when he said that this case is kind of like you know we have a document we have a number of documents in the record here that show what mr woodring as was charged with he was charged can you can you tell me that's document that i just quoted this disposition of arrests the court action is that  prosecutor's document or court document your honor i'm not aware of the answer that question i don't know whether that's a prosecutor's document work or document i can tell you that it looks from the record that it came out of the court's file i can tell you that it was it's got  seal on the back of it was part of the official record of the case from the proceeding that would seem right there to give it the reliability that the courts looked at in snellen berger and related when you say it has a seal that just means it came out of the court docket right so you can put a lot of stuff in a court docket well that's not official it's right from the files of the california department of justice bureau of criminal identification information so the the seal on the back says is coming from the department of justice's files not from the court files if i'm writing that correctly am i i'm sure that you're reading it quickly off the page or are i'm not sure if i can corroborate the significance of that phrase but let's just put that document aside for a minute because even if we do we've still got a report of an indeterminate sentence in the record here and that pretty conclusively shows that mr rodriguez was charged in count one with possession for sale of pain in violation of california health and safety code section eleven three fifty one which which documentary and i know your honour's that in an unpublished decision in two thousand and nine called castro that we cited in our briefs this court specifically looked at that precise document the report of indeterminate sentence and said that that document is reliable and is an appropriate shephard document under the well i don't know that we need to your arms but i think we sure can well question that the counsel raised was the certified minute order refers to count one but he said there's really nothing in the record that's clear as to what count one was charging document while your honor's there is no charging document in the record there's no complaint but we don't need one your honour's we don't need one to determine in this case what mr rodriguez was charged with and what he pled guilty to because other documents show that i direct the court's attention to case so what what we're back to the book and i think that's so in other words the ones in the middle don't have any meaning if they're not linked up with something would you agree with that then the two minute orders well i don't know what count one is if we can't look at some they're useless in the absence of saying you know i did i didn't use the word useless i asked you that whether those documents give you any indication that we're talking about the minute orders that there's a plea to cocaine or charge for cocaine or whether you need to have an additional document to have count one and those documents make that you do need to have an additional document to make those documents make sense additional document in your view is either the report of indeterminate sentence which says haas last say or cocaine or the disposition which judge could have referred to that certified by the department of corrections that has the same language that's correct your so if if if either of those falls off the table so to speak the two minute orders also fall off the table if both of those fall off the table then the remaining documents wouldn't indicate what the controlled substance was but that's what it looks like the best thing you have here is this report of indeterminate sentences you say yes you are and  one includes other things too right it does your honor it doesn't clue to other substances but by this but in the descriptive column it says cocaine i believe it listed all in one box your honor but i don't have the form in front of me right now  seem directly on point but i wanted to hear from you because this goes to a question of our jurisdiction if it's an untimely motion to reconsider then we don't have jurisdiction over this matter well your honor i think if it's an untimely motion to reconsider the court reviews the board's denial of it for abuse of discretion the court would look to see if the board abused its discretion by deeming the motion a motion to reconsider and then denying it is untimely so i'm not sure i follow your honor that it's a jurisdictional question but i would suggest that there is no reason to determine that the board abused its discretion in this emotional reconsider in denying it as untimely so that's the rest of your question i absolutely agree with you the court held in a true  motion to reopen in other words is a raising changes in facts no your honor it's not it's only raising changes based on law in fact the move really you raised two cases that had come down from this court in the intervening time between board re examine its decision in light of additional legal arguments a change in law or perhaps an argument or aspect of the case which was overlooked whereas a motion to reopen is based on new evidence or a change in factual circumstances so if he had filed a motion to reopen and the board had not rican strewed it as a motion to reconsider than the board could have denied the motion to reopen correct i believe so you're out and yes and then of course that we might have a jurisdiction issue but they they did recast it as a motion to reconsider that's correct your honor they were which was an untimely correct because it has to be brought within thirty days yes that's absolutely correct the board looked at this realized it didn't have new facts and had decorations affidavits evidence attached the back of it in a memorandum of points and authorities that laid out a bunch of new legal arguments and the board correctly determined that's a motion to reconsider because it's not alleging any new facts it's not alleg change in circumstances then and that's that's consistent with the terry bara as well right yes or no that's absolutely correct you're as i say i just have a minute left so i'd like if i could to direct the court's attention briefly to a couple of cases cabin tech united paper and i think that department of justice knows that it it's a lot easier for us to get these by electronic filing before the argument i don't know if this kava tank is the end bank opinion and have a tank or some other opinion you know so it doesn't help us in the conversation so for the future you might just reference that to people in your office but meanwhile she has a very handy little sticky pad that you can fill out to rest mr rodriguez the central argument that his police statement that he did not possess contraband for sale his argument is that that contradicts the documents in the record that clearly show he was charged in count one with possession for sale of cocaine if we can link up a document showing what the substance was to a document showing what the plea was are now as this is done and even if the defendant enter something like a west plea where they deny all factual guilt where they deny any of the facts that were do not have the charging document your honor but we do have comparable judicial records that show what was charged well we they have to be judicially noticeable documents as allowed under separate ins ellenberger and so one of the questions would be as the department of justice documents would be a reason to do to defeat a finding that the immigration consequence applies and each of the cases that it cites required a complaint or charging document as well as football and bears on the matter is this report indeterminate sentence other sentence joyce issued apparently by the it says its signature of the so it seems to be a california superior court document where is the ambiguity your honor you really can't tell what the complaint said complaints in california can be written very broadly or very narrowly what's it i know i know that it says crime position six last sale cocaine ok but it again to this is a one little box summary of we don't know what facts were stated in the in the complaint or charging document or whether it whether the clerk who who fill that out even got it right and that's the reason that the courts that this court is requiring to see that the charging document in conjunction with using a document like that just you don't i guess that does get to the crux of it and i don't ever remember law saying that we have to see the charging document even if we have a report on it i commend you this make a look at that risk to tourists and all the cases that it cites because to every case that talks about this and they're all  counsel for your argument this morning the case of rhetoric gets versus lynches submitted