rebuttal this case presents three successive levels of issues the first issue is whether or not there's a final order for review which would give this court jurisdiction to review in the first place certainly there are two issues relative to whether there's an aggravated felony based on the two convictions in this case and then finally a last issue is whether or not there was a error in denying a motion to terminate based on the previous quarter of deportation turning to the first issue and i think that's the threshold issue here as far as review goes there's no  this your removable you want to reply for apply for relief it gives him time to come back and he says nope and she says then you're out of here for the reasons that i said before what what's what is failing about that it's a very clear understanding but the the feeling is essentially this she's using a summary removal decision perceives or that can only apply if there is a admission and on the record as to the pleadings and because the operable regulation is twelve forty point twelve a n c and that referred you back to twelve forty eleven under that regulation you do have to if there is an admission sure then she can issue the summary decision at the point at the end conclusion of the proceeding as required by the controlling statute which is twelve compliance with those regulations she has to issue a decision before she can issue an order and the government's argument is essentially she can do exactly what's been pointed out here make a composite decision based on some previous down the next paragraph down your honor just before the due process section i believe that it addresses there that particular issue well i mean basically in the brief it stating a combination of written rulings on the motion on the summary decision fails to comply with either and then it cites the two regulations and then secondly there is further compliance with the problems  true but her format is this her format is i'm going to use the summary or all decision procedure issues a written memorandum but then doesn't enter the written either a written appears to me looking at it closely that he was convicted on all three counts am i reading that correctly or incorrectly i don't know because we're stuck with the records the government submitted it and i understand that  are referring to the sort of dark line that goes like this it's not as if yeah it's just like it's a little darker but it still looks like that's what he was convicted of well you're going to be working because of that the problem with that is that would sound under one  the knockout alone will stand as a conviction capable of supporting a finding of an who have been convicted of violation of law specifically aimed at the regulation or prohibition of controlled substances or the portable as our airlines have been convicted of conspiracy or attempt to violate the laws so that kind of gets to the abstract the judgment the that's now limburger i gasped and which the mandate has not issued at this point so do you want to make any comments on that well on the smell of burger issue there is a petition for you going pending and so it can't be used as president and i just noted it relationally my brief but after checking it afterwards it now is can't be cited as president how are the reasoning under shepherd i think still applies here insofar as whether you've got a sufficient record to find  felony because there's not a completed transaction yes to a degree and if i could address those two convictions of the other two convictions directly and  will answer the question ok here the first problem we have with the one zero one eleven three seventy point six we have a statute that if you go through the taylor lopez analysis it's either got to be s controlled substance of fans or it's got to have a drug trafficking element we don't have a c s a quibble and here the only one it comes close is eight fifty four under twenty one u s c where you have it here's the real thing is not  don't think so and i think essentially both convictions have to stand on their own she sustained the conviction why but there because there are records of convictions doesn't require you to do things that just look on the record well they were to see independent motions for then you've got to have an aggravated felony for each and every count i don't think you can mix and match and just say ok this was a conglomerate issue and the modified categorical proof you can look and see what he was convicted of and it's obvious on the face of the documents that are properly considerable and that he was convicted of an attempt fantails into the problem of a reviewer sanchez navidad marco's type analysis because we have transportation is one of the issues and unless you have something beyond a merely bureaucratic generated abstract of judgment which is the only other document cites the complaint you're not going to know specifically what he ended up pleading to all you know is that there is a a entry of the statute and it's executed by the clerk with the stamp and that's it there's nothing more in or it's exactly the same problem a shepherd a grassed and shellenberger if it was supposed to or if there was a decision and it would be addressing as well let me ask you completely different problem here with the six fifty four my cooperative statute here and i think what's missing in the analysis is really the definition of what a conviction is of under the eye on a we have to look at the law eleven zero one eight forty eight and under forty eight we do have this problem we have a says imposition of a punishment to be imposed that's the operative language and under chevron we have to take it literally when you look at six fifty four and that is even those if there's a stay as to an infinite state of imposition it's not a star scuse me i'm sorry it's not a state of imposition because it can never be impose that's the difference here and i'd submit that there is no if you have a six fifty four stay if you go under the state of callous of the state of california he did not have a sentence that's capable of meeting the requirements of the the original definitional requirements of the statutes sentenced on one and then you can't sentence on the other through because it is considered to be the best after where they would have gone on that one and not on the other one now that's well that may be true but they did and i don't think it would make him as an abstraction or a hypothetical i don't think would make any difference which one the state was on if there is a spade a they have to apply it as to the one with the most severe punishment scuse me the one with the least of your punishment and if it stayed under the statute the language is very clear the can never be imposed and now it's not like the probationary term which or something like that where you have a suspended sentence which is contemplated in the definitional subsection capital d of the statute where it says if you have suspension suspension of sent a suspended sentence well in that case it could be imposed and certainly it slips well in this case you've got a sentence that simply cannot be imposed and if it cannot be imposed you do not have an  sense i see that my time's coming up i could reserve the remaining three minutes surely with regard to the first charge no it's no under eleven thirty eleven three fifty one for the second count no as charged for the third count no as charged so there  of either could be notations of the district attorney's office or notations from the court itself that may be unclear but it seems that there's no the government didn't seem to dispute that there was a are seeing that are going understood that this person had been convicted of the offenses presented now for the first time on appeal to this court the petitioner now argues that no in fact wasn't convicted of something that fell that was a controlled substance arguing under case light like snow and berger our that what argument was not presented to the board of immigration appeals and is therefore therefore fail to exhaust administrative remedies and under this court's decision in more or less all agree i can't raise that charge but that still leaves open the question of whether or not the sections he was convicted of otherwise fall under the controlled substances act and the answer is that clearly they do now but again because that was an issue before the agencies and everyone seen an agreement that's no longer a challenge that he can viably raise because of the failure to exhaust ministry remy's the only question now becomes is someone who was convicted of attempt to possess cocaine for sale guilty of a felony under the controlled substances act and that's clearly under age forty one that he would be a forty one specifically says those who try to below before the immigration judge or the board of immigration appeals and under morales all agree that's a failure to exhaust administrative remedies and can no longer be considered but whether or not it that offense you in your possession of cocaine filed by the district attorney in this case it's not enough just the information it can be enough in conjunction with other documents and other documents were used by the immigration  challenge the reliability of abstracts of judgment at the modified categorical stage therefore it does provide some insight into the issues here but again i'm not sure the conviction for a certain amount of time therefore we like jurisdiction review that question under two forty two d one so in now if with this much time left of the going to turn to the question of whether or not there were as a finding with regard to prior proceedings having been closed in one nine hundred seventy six law there was finality in his prior proceedings race before the immigration judge or the board of immigration appeals indeed even like that is correct who was convicted on her california laws involving attempted possession for sale cocaine and possession of large sums of money one hundred thousand dollars or more for purposes of purchasing cocaine for sale the immigration judge properly entered a final word in this case on appeal mr duenas failed to exhaust administrative remedies regarding with our solutions cocaine and the board otherwise correctly determined that his convictions would be a felony under the controlled substances  two nine b a yeah b a secondly in terms of exhaustion the categorical approach was applied i'm looking back at the judge's decision the judge basically seems to address if i'm not mistaken and since the issue just came up i haven't been able to really fully read the part of the record but i'm looking at the decision of want to one through one of the two would appear that the judge was not really relying on the conviction record but it appears to be a facial aggravated felony and actually but be that as it may even if she was going to the record there has been substantial change in the law which i think allows to raise the issue now first the issue that  not been addressed by either counsel but it was raised in the reply brief is the reason the doll issue if the government's going to rely on this annotated complaint they can't rely on that under a rui because of the change in law lopez now such down uniform standards as opposed to prior law as to what exactly i graduated felony drug trafficking offense is and by spelling it out i'm spelling it out clearly i think we do have a significant change in the law that allows you to now argue something that you didn't argue to the i j a and that is w and that would be if you look at this conviction record in addition would not be a visual aggravated felony if assuming are you endo that it is not a facial aggravated felony then you don't have a conviction record now that was also premised on shellenberger which is even more restrictive and i think even more significant change in the law however that's not precedent at this point i would submit that if the court might want to could see if the court is inclined to do so