related arrest was vacated and twenty twelve he took an alford plea in this case and has never made any admissions of selling or trafficking drugs but doesn't you know please constitute action under oath that the government has enough evidence to secure a conviction in this case on the record the court specifically asked mr libby where these drugs for personal use he said yes he has never made any admissions that he was selling drugs  that he was trafficking any of us if it's enough for plea and there's no admission to guilt it's an admission however that the government has evidence sufficient to secure conviction and why doesn't that constitute reason to believe drugs pounds and pounds of drugs that was not the case here that you see it on the police on me please the police report was really quite detailed involved reports and meaning that it's hearsay and wouldn't be admissible in some proceedings in terms of providing a basis for reason to believe it looks much more detail to me than the report that was in the garces case it was found wanting in the eleventh circuit and i wonder why you believe as i take it you do that this report wouldn't be sufficient to provide the agency with a reason to believe that he was involved in trafficking in the police report it mentions  nothing about my client being found with drugs in his personal home there was no searches of his personal home where drugs were found but in the car with him was a substantial quantity of marijuana that was packaged  can smell small odor of marijuana i can see three plastic clear plastic bags each containing a plant like substance it was consistent appearance and texture of how meron is packaged for sale he refers to th stash as with maybe one to two pounds more drug which was not located where he identified it was someplace else there were scales and he had six hundred dollars in cash that is that person and that even if it's not proof beyond a reasonable doubt that he was a trafficker why is it that insufficient to provide reason to leave that he was involved in trafficking one of the other issues your honor is that we believe his due process rights were violated this is reason to believe argument was brought up by the immigration judge in this case it was not brought up by the department the department is not the one who decided to basically make this the main issue in the case it was actually the immigration judge who took it upon himself to bring up these cases to bring up this argument and decided this was the only issue that was going to be focused in its merits hearing and did not have a chance to respond and did not your client can your client's counsel at the time consent or agree that that was the issue  his attorney did consent and decide that that was the issue however we've also argue that that attorney who represented him at the time was ineffective and that her consent and what she had stated on those records was in ineffective assistance of counsel she did not provide him with affective representation she did not make a claim and try to argue any other points that he did have good moral character or bring up anything else to the point that it should show that the department is the one who should be arguing that there's bring up issues of the r j thought bearing upon the discretionary determination that the i g would be required to make it is the burden of the department of homeland security in this case to decide that if to bring up the issue that he's all is a drug traffick and it was should be their questioning and their proof to prove that he's illicit drug trafficking it should not be on the immigration judge who should be an impartial and unbiased member and to question my client as to whether or not they there's a reason to have this release report now for we come to the attention of the larger i believe that it's possible that his counsel is the one who supplement provided that to the court as you would if you were at requesting relief and just so i'm clear please where are you finding ineffectiveness of counsel only in the immigration proceedings or in the underlying criminal proceedings as well no in the in the in the underlying immigration proceedings not in the we're not talking of the criminal case he did file a motion to bake it which was based on ineffective assistant counsel in the criminal case which was granted based on on the case correct but that actual determination was not even made whether the ineffective assistance of counsel was clearly based on only failure to warn him the same pair but i do believe that his counsel didn't make arguments saying that he was not properly advised as well as the fact that they believe that there was ineffective assistance of counsel based on other factors other than just ineffective assistance of counsel and you're there because he's me ineffective counsel at the stage of the criminal proceeding separate and apart from the basis on which the plea was vacated would you would that not have had to be brought to the attention of the i should not the i g have known that that your client also felt that perhaps the circumstances leading to the creation of the police report were somehow and proper that is correct and his immigration attorney at the time should have brought that to the attention and made explicitly clear i don't believe she did that there were times when she did try to infer that but i don't think it was made completely clear to the judge she said on multiple occasions in the record that they she believed that the she did was not advise of his immigration consequences as well as she believe that there  we believe that although the there is an there is now her plea that my client that my client took heller it was subsequently vacated and there has been no admissions by him stating that he was selling drugs you don't need any the police report it states that there that he had given consent to a stash yes he has testified in his immigration case that this stash house was not his that he did not get consent that he did not have a no where the key apparently was to open  stash house he has made no admissions that he ever sold drugs so he doesn't have any previous convictions of selling any kind of drugs he was not caught with pounds and pounds of marijuana as in most cases that where it was a trafficker is found and he was also not morning your honour's may please accord david webb more of the department of justice for the attorney general just to correct one threshold matter regarding who doesn't really matter but who raised the reason to believe issue he was actually reference the ultimate basis at that the i g found well your honor it's not because it's not a grant of remove ability but one ground of remove ability was that he's a visa overstay he conceded that the criminal charges once they once everybody learned that whether the attorney general had a reason to believe that he had been in the past in illicit traffic or in marijuana with regard to the police report it's contemporaneous it's sworn of standard of proof do we have to get to what constitutes reason to believe a probable cause or something more it's what the board isn't interpreted that it's some it's substantial evidence the court would be reviewing for substantial evidence but to make the determination it's reasonable substantial and which we really believe that this court's unpublished decision and no luck is highly instructive we have almost an identical police report only in this case we have almost ten times the amount of drugs found on the petitioner that we did in that case him o forty one or two hundred ninety six grams or three hundred ninety six either way at a minimum it was it was over ten ounces of marijuana so this is not a small amount and then at the stash house they located additional packing materials they found the scales just like they did in the walk they found the residue on the scales just like they did in a lot of it really is you know from that standpoint really on all fours with the stash house the police report indicated that he led them to the to the stash else he signed consent for search and he located and gave them the key to enter the stash else his his own self serving testimony once he knew that you know very fortunately for him that this evidence had been destroyed after his plea was entered really as as both immigration judge and the board found you know it really paled in comparison to the overwhelming evidence both in the sworn sworn contemporaneous police report as well as what he admitted as judge jacobs pointed out that the state did have enough evidence in his plea colloquy of the state said you committed the offense when you have marijuana for sale you understand that and he answered yes that's it isn't it isn't it a little odd that doesn't strike you as a little odd to be assigning immigration consequences to a plea that was vacated because someone it feel to advise him of great migration consequence says i mean this is just the kind of consequence that the law requires him to be advised tough and i feel personally more comfortable relying on the police report of the sound can you make me more comfortable about look into what happened in the immigration consequences for us through a rather strange response that he gave at the beginning of it when he was asked are you a city you said you were a citizen right he said yes sir and then later claimed that somehow he thought that that referred to a citizen of any country timbuktu jamaica or whatever that happened to be though he was sitting in the united states court within the united states of sort of stretches reason but going back of the connecticut court of appeals  center said that even if there is a violation of this connecticut statute to provide these warnings it does not render the plea not knowing a voluntary so again we have a knowing and voluntary plea to the same charges that would show that you acknowledge the government had plenty of evidence to go forward with the charge of every every presidential opinion saying that  substantial evidence standard applies to the reason to believe a finding with it when they do it can be supported by dismissed charges  is is not dog dog here very much sure sure absolutely yes it's not an issue that comes up a lot it's not one that's been addressed often and you know when this core did address it in though our kids took the position and were taken in the brief now that that it can go forward in that manner really the only other issues here it's clear as far as any ineffective assistance of counsel claim none of that was raised to the board it's an exhausted there's no chance he have an opportunity to raise that to pursue that in any way now ocean absolutely is headed an opportunity to pursue that at any time in the proper vehicle be a motion to reopen with the board where he has to comply with  the procedural requirements of matter of lozada yes to show prejudice yes to inform the other council or the other council to respond none of that's been done and you know the failure to do it try to sneak it in the brief no is it simply doesn't to see of the act namely an alien to the attorney general knows or has reason to believe that it was or is an illicit trafficking in a controlled substance this is again one of the my that we believe that the court took it upon themselves again too prove citation to the record in which she says that i do not agree with counsel that that the department raised the issue however it was the judge who took it upon himself in this case to ask my client to to make most of the questions to decide that that was the only issue that was going to be done in this case to bring it up at almost every single hearing where his attorney at the time did consent to it i would also believe that  that the the arguments regarding that the the no adverse lynch case that it is not so much in my client's case again it was not his apartment it was not his bedroom it was not he did not swear before the immigration court as in no walk that he had marijuana scales and zip walks out of his bedroom there was never an admission on the record that he admitted to selling drugs all he has admitted that he used them for his personal use this is only criminal conviction regarding the that was his only vacated criminal conviction regarding drugs and sale of drugs he has no other criminal convictions for anything regarding drugs use his stand are referred to the phrase reason to believe and the government has said that that means reasonable substantial probative evidence supporting that reason to believe what you say it is that it should be supported by substantial evidence and here th police report and vacated alford plea that is not substantial evidence to believe that someone is a drug trafficker if there were multiple convictions that would be another story if he was found the pound the pounds of marijuana if it was found in his home as in any of these other decisions that would be a different case and we have here there are court that said he had been found with a pound of marijuana in the car that would be sufficient no your honor we don't believe so yes because that is not with the case and as well as the fact that there would be an admission there's no admission here he has never admitted to selling drugs he the immigration judge as in the department asked him if he was asked also by the criminal court in connecticut never has made there was a finding that he has admitted to that he was selling drugs has he used drugs yes that's the last case on calendar