bula lopez versus u s attorney general ninety three he's had one very serious problem with the law the subject of this lawsuit and why you're here today i have to say first of all that the immigration judge used the wrong standard he applied the wrong burden of proof to the government and as we know under a matter of ribbons it was the government's burden and right off the bat he applied the wrong standard but didn't  b i recognize that incorrect part because they recognize that he stated the correct standard and part of his decision but he applied the wrong standard and he clearly stated i find by a preponderance of the evidence and when this man's residency is as i understand that what i'm saying is we're going to be a decision correct and that the i didn't and didn't apply the wrong standard i recognized that the immigration judge used the wrong one necessarily manged to be a apply the correct standard otherwise it would have been no point and it recognizing it applied the wrong that the burden was met by clear and convincing evidence the immigration judge used the wrong standard but after the judge issued the decision hand delivered it to the prosecutor in court pointed out to the disc in the decision that he only sustained one of the grounds of removal the government reserved appeal and then the government did not appeal after conscious deliberate time and thought the government made a choice and the government shows not to reserve appeal on that alone the record on the issues must be forfeited because once the government doesn't appeal just like me if i would not have reserved appeal i don't deserve to be heard the issues are are permanently forfeited and in this case your honour's the government shows deliberately not to appeal and cannot be corrected by any record the issues have been forfeited the only issue i submit in front of your honor's is whether or not the conviction is a crime involving moral turpitude in order to determine that don't we have to to what the statute of conviction was whether it was possession or whether whether it was with intent to deliver if we're going to agree that it's intent to deliver that the thought and the analysis must go further because the statute eight ninety three point one one is divisible and the decisions after the b i a decision in the immigration judge decisions clearly state that this statute the immigration judge to evaluate that statute because delivery is different than distribution deliver early delivery of a controlled substance if it is a controlled substance is not a crime involving moral and most importantly gordon from the eleventh circuit and to some extent sinchon another eleventh circuit case in the string of manufacturer intent to sell intent to to another person of the drug not be a crime involving moral turpitude but if you distribute the same amount to another person it is because i'm not distribute and deliver are two different definitional terms i'm asking you i'm asking you why one is a moral turpitude offense and the other is that you're delivering an illegal drug to another human being are you're distributing it to another human being distributing in my opinion is not necessarily a crime involving moral turpitude you keep your counsel you keep repeating your conclusion  there's not an amount component to it and there could be distribution among friends there could be delivery among friends and deliberately livery also does not constitute so you're saying you're saying distribution of a controlled substance requires a profit motive assessed yes and where do you get that well i believe in the case is gordon in sintra own sale consideration remuneration has to be a factor and when corn in one thousand nine hundred seven lumps everything together as distribution i believe corn was putting together sale manufacture and involving moral turpitude because number one sale has not included in in this in the elements whatsoever and the amount of the product and the particular use immigration stratosphere use among friends is also not a crime involving moral turpitude and that is the least culpable conduct or the least the the least it's not a crime to have friends who use controlled substances that's not the least couple crime because it's not a crime at all in the crime is crime is your actions delivering it to and that's in the line of aggravated felony i'm applying it to crime involving moral turpitude as well i think i understand your argument i'm just trying to figure out what the authority is that you're relying on for ok it in the immigration judge did not wondering is i think what you're arguing is that delivery of a controlled substance is divisible from distribution and the other things and the delivery of a controlled substance does not rise to the level of being a crime of moral turpitude for some reason and and that might be that might be true but i'm wondering what cases you're relying on to say that delivery of a controlled substance is different in form in substance really from distribution because the case law is on whether or not it's an aggravated felony and distribution among friends use among friends along that line i'm taking the crime involving moral turpitude standard that step further are you saying that there's a case law that says delivery of a controlled substance is not an aggravated felony yes ok what are those cases and that's gordon which is sixty one f third thirteen fourteen which was decided in two thousand and seventeen well after the is expertly i want to go back to a cross appeal argument to make sure i understand the record you made that cross appeal argument to the correct i appealed directly the government did not cross a plateau i know but you made the argument to be a did that by failing to make a cross appeal they couldn't raise this first ground for affirming here i did and the big i said no separate appeal issue or card whereas here the non appealing party six to defend jay's decision based on different reasons so the big a rejected that as a matter of their appellate rules a before the b i'm just trying i just want make sure i understand that the expressed i rejected that argument it was the last sentence in their decision right and so why should they be able to decide what comes up to always legal issues right and whether the conviction is a crime involving moral turpitude and in the analysis of whether it's a crime involving moral turpitude we don't have to get to whether it's ok understand that but but this goes to whether or not there will more question for you also do you have authority for the idea that just because something is not an aggravated felony it cannot be a crime of moral turpitude it ten there are many instances where is not the same as distribution sale manufacture it's different and at least what's troubling you needed to be reviewed and consciously determined in the case below that's why at the least some respectfully asking you to remain and to the immigration judge to apply the right standard and to make that proper analysis thank you council chief did you have anything else no i did not  because a conviction constitutes what is called an aggravated felony he's not eligible for cancellation of removal or what's called an eleven eighty two age weight or the only two means by which he can avoid being labeled an applicant for admission thus the court should be turning general decide to appeal the second basis that is the controlled substance basis it's actually separated so that would be a department of homeland security decision and i'm not privy to it i'm not sure why if i were to speculate and it's pure speculation i don't see that they had a need to they got the result they wanted already before the immigration judge an immigration judge cannot set law so even if there were  in the federal schedules it really is no issue here it only became an issue when the other side appealed it and raised it again and the board said it's ok to argue in an appeal reasoning supporting the i result even if that reasoning is at crossroads to what the i g ruled and that happens a lot even in the district court context where something can come up to the appellate court and depending on the standard review the court is able to rule on a legal issue on any basis on the record that would support the district court judge's decision as long as it doesn't change the outcome of the write in this will not change the outcome because ultimately d h s s seeking an order of removal and a fine human he's not eligible for relief and it's the same on both levels but isn't the real issue here they should be able to run that court i mean there's not a due process problem i mean that i said we're going to look at this alternative crown is there any case law says that can't look at cancellation of removal application that he has a conviction for possession to deliver narcotics so there is really no reasonable basis to argue that this would be a possession conviction and when he sought to vacate his conviction before the state court on the basis of not being warned of the immigration consequences which is in the record the state judge relied on the district attorney's a brief for reasoning to say why they denied the motion and that was all discussed in possession with intent to deliver so i don't think there's any reasonable basis to relating to a controlled substance there's two ways around that where he might be able to still stay and one is getting what's called cancellation removal and the other is getting eleven eighty two each waiver now both of those require that elian not be convicted of then at the end of that paragraph we hope that these six alternative methods of commission remains not elements where and a visible doesn't a the specific question we must answer here is where the statutory language sales purchases manufactures delivers our brains into the state are who is unknowing or actual constructive possession of them and if that's that central that doesn't support it but listen if i had the two cases backwards gordon circuit twenty seven think just last year delivery unlike sale does not include an element of consideration thus a conviction for delivery of controlled substance under ninety three point one three does not qualify as an aggravated but i'll correct your honor our argument if thing refined a little bit far is if it doesn't qualify as an aggravated felony delivery doesn't not dispositive of what would be dispositive it he's he is he's has a conviction for a crime relating to a controlled substance so it would even be necessary to reach that my second response would be that matter of corn was focused on the evil inten thank you relating to gordon gordon is exactly on point and i use in tron because of the analysis of the eleventh circuit relating to the drug statutes gordon specifically states that this conviction is not an aggravated felony and that's why i do ask the court to strike the part of the b i a decision the fines that he was convicted of an aggravated felony because it matters it matters in a spew teacher no matter what happens with his removal and whether or not he will ever even be able to visit united states again it matters that the b i a gratuitous plea ruled that it was an aggravated felony when the only issue was whether he was an arriving alien as to where jurisdiction would would vest well well well well it is gratuitous because it was another basis that the he could reach the same decision no because aggravated felony is not a ground of inadmissibility my client correct it when it overreached it we went beyond any issues that weren't even appealed and it basically made a ruling that had nothing to do with any of the appeals the only issue is whether an aggravated  arriving elian can apply for a two twelve the issue of whether or not the conviction was an aggravated felony was never an issue and that's why i'm hoping and i'm praying that this court strikes that part of the record finding his conviction was an a controlled substance offense i will not concede that because the florida statute is different than the federal statute and the federal statute specific specifically defines what a controlled substances i agree it's a drug and it's a drug listed in the florida statutes but a conviction for a ground of removal in immigration not for not for any kind of criminal premise but for the ground of removal of being convicted of a crime relating to a controlled substance as defined by twenty one u s c eight zero three that's definitional and i believe we should apply strict construction as to what congress wrote and nowhere in the immigration laws does it mention the c f r the code of federal regulation but in title eight the immigration laws many times congress refers to the code of federal regulation in the department of agriculture but that the part that it does refer to incorporates the the regulations right the c s a itself updates regularly that that language i can see it's clear in the statute but whether that see a far updated provisions performed by a different agency the da is meant to be written into law as though it is the statute i disagree with and that will be either a strict construction of what twenty one u s c eight o three states versus whether we're going to allow the do ya a regulation to be part of that i say no because it's a different agency different rule making and a different analysis and that congress in the immigration context only intended those scheduled those drugs listed on the initial list in title twenty one to be included to support that ground of removal and then further chief no thank you thank you very much counsel thank you