a state court expungement be afforded folks a treatment when one county is under the influence and one count is simple possession the reason it's an issue is that for some i think inexplicable reason the federal scheme does not criminalizing under the influence and so the argument of the government is this party would not have received the phone for treatment therefore the ultimate expungement in this case does not vitiate the immigration consequences of crime i have two arguments to that and i think they're very not have been criminally you know they don't criminalize under the influence so by a logical necessity the gentleman would have gotten phobic treatment number one number two you have the cardinal's case which deals with another odd situation where the federal s you know simply possesses paraphernalia doesn't get the focus treatment that somebody who may have possessed a large amount of heroin would that was sort of a disparate treatment but that same thing here when you think about it according to the government's argument you have to make sure you get arrested before you ingest the drugs to obtain the phone for treatment that i posit is absurd and the notion that you would be treated worse because you simply ingested the drugs is an absurd result and i believe if violates his first time offender under the federal scheme under arrest thirty five sixty five the magistrate can simply sentence him and he doesn't get the full treatment or they can continue it and then if the defendant successfully complete you look across the country pretty much every other circuit disagrees with our approach to know who harm you know we really can't have a panel we're right we're stuck with perfect parallel between the state court concept of reinstatement and the thirty five sixty five concept of a magistrate having jurisdiction to simply continue the focus treatment card it doesn't say you know i mean i think you can challenge hardness and i mean obviously i have a problem because it's a published case but i do the government maintains that nia is resuming remains convicted for immigration purposes of a crime relating to controlled substance for three weeks he has two convictions the possession of a controlled substance as well as use or being under the influence of controlled substance that would both require federal first offender act treatment in order to  court it says that the sort of analogous application if you were to be in federal court applies exclusively to first time drug offenders who are guilty only of simple possession so we have only guilty of that here he was guilty of two things and the california court found it sufficient to convict him of both offenses even though they arose out of the same incident and this court the california courts as well as the ninth circuit have have over the years upheld this distinguished crime because under public policy reasons years ago and this is in the california courts people versus ban it being under the influence is corona lies because it leads to addiction further serious crimes the courts thought it was an indication of further serious crimes so california chooses to criminalize it worse some other states don't and it has a long history of being separately criminalized so he was convicted of both and additionally if you don't look at this even though it's sort of if you were to be in federal court he would be simultaneously applying for federal fender atrip treatment twice i mean he would be asking for a grant for possession of a controlled substance and then he subsequently grant for his use and being under the influence conviction so while it's simultaneous it still would require two separate analyses and it just does it's  it does not fit that the federal first offender treatment could apply for two offenses additionally we have the parole violation which is very well documented and documented in petitioners own documents he submitted to the immigration judge that he twice violated his probation and twice it was revoked and under this court's decision  i don't think it is distinguishable because it is just the act of the fact that he's violated probation that in of itself would make a mess because we're looking at a hypothetical application here it's not actual up in the federal first offender act so all of this is hypothetical the drug offenses don't perfectly match either so you just kind of have to look at this is more of a sort of what happened what transpired type of analysis rather than a match for match analysis and in that case it's just a phone simply probation violation you would not if you were in federal court get federal first offender treatment and here i mean this court has in the in the past in opinion does not make any finding about parole violations correct or parole revocation so how can we rely on that when we're dealing with review of an agency action ordinarily we're limited to whatever dude the agency decided and relied upon it's not like with a federal court where we have it's more generic supervisory powers and we can say well there were a lot of other reasons before the court so it doesn't matter we can't normally do that why can we do that here you can do that here because analysis of the federal first offender treatment is not something that's within the purview of the board expertise that's not my point and i may not have made the question clear because whether or not someone has finally to their parole or have her refuse her had a revote is a question of fact case the board made a fact factual finding that there was a single conviction not two convictions so instead the court for the board in that case had proceeded to find that use and being under the influence exclusively that only conviction was would not get federal first offender treatment this court took a look at the words decision and looked at the record in that case found that the board looked at the record found at the board was actually wrong but there were two convictions not just one so this court determined looked at the record found a separate conviction and affirmed the outcome of the decision but instead reached a different legal conclusion in the u s ariano the court reached the legal conclusion that because there listing everything that you yes yes so in this case california chooses to separate they criminalize use and being under the influence he was convicted of both offenses and he would need federal first offender treatment for both offenses to cure the problems in this case and because it is separate and distinct it's viewed as it is viewed as a different offense it has this court the california courts have different position thank you thank you  first this is sort of a class on logic to the notion that we would say he would need to focus the treatments for a nonexistent drug crime is absurd he couldn't ask for help a treatment for under the influence because it doesn't exist under the federal scheme so to make that parallel reasoning is simply undercard is absurd and again if you want to talk about public policy i believe it is almost comical to say you will be afforded folk a treatment provided you don't you get that doesn't have a federal parallel and therefore can't receive first offender treatment he wins his facts about your position more or less and i'll tell you why lou jan says specifically you must you do not engage in this perfect fit analysis that says would you have been the or radically eligible under focus so if you have simple paraphernalia even though it's not federalized under the federal scheme of course you should get the same focal treatment that by the same species of drug cases it's either transport and sales or personal use right so i mean theoretically i can imagine something that's essentially a possession that would be so much more serious than what this says criminalize i mean i can theoretically come up with one of those so i mean you know the states what's on the on the ground what's real and finally in terms of the probation business the only reference to a probation violation is on page ninety three and refers to a different case so we don't have that in this record and so i agree with your honor that's