her action is that you must have done a very good job because i would have thought to be a would have just said no we're not going to we already decided this case forget it and that but they didn't i say i don't really get it  they didn't i and since the government i guess commendably in for that reason isn't contending that you're for close by the first hearing or by or by the same case which i would have thought cited that and now you're back at the border you somehow talk to boarding time hearing you again so i guess we do it but it's i would have thought they would have said go away altogether which they didn't well that's true was concerned about this when i went back to the rack he specifically conceded the conviction in your locality in those words yes he couldn't write so so at least gesture movability that has to be over now don't know what it is anyway but it seemed to me that you first of all got to find that the issue was not exhausted before the be correct you mean the first time yes well on appeal from the i j you didn't or the nobody argued that he was not bound by the attorney's concession the removal is charged no nobody i think they are eight through twelve anything you can and challenge and whether they should have decided that or not well this petition comes from the second i now and in the second hearing there is a paragraph on the record that indicates what happened i thought the  disability so they did let's supposing they grappled with it and they said none of these were equivalent to simple possession they'd tell why you were wrong why is that wrong well because that they were primarily discussing the transportation element could it be a sample possession we argued that it could and we've already before this court that it could under california law up until recently an individual could have a small amount for per higher for it's the transportation crime than for the possession crime yes it is and and there is a california opinion in science or stand in that tries to explain you know why transportation is worse even if you're  offer to transport import sell furnished administer a give away or attempt to do any of those things i can imagine a situation where a person could be prosecuted for sharing a joint with his friend doesn't necessarily go to the name of the crime itself but also to what happened and in the crime and i think matt moncrief goes let me let me ask you what do i do i mean if in fact the a is wrong that maybe it could be equivalent of simple possession what do i do what i would do is i mean my worry my worry where you're going what relief do you want what do i do in that situation supposing that this might be the equivalent of simple possession i can't tell you that it is i don't have any of the documents in the record i don't have any idea the know what the crime was that was committed do i allow people to go outside the record to determine the amount of the drug or what was done a is it ok if it's inconclusive what if there are no records that will give us that then is it absolutely you lose because you have the burden what do i do your honor there the record before the court and before the day was very minor it was nothing more than a ton of i understand but i'm asking you i swallow your argument what do i do i would remind and know what to do i allow the i j a to do at the worst father respond that you would require him to carry his burden  demonstrate that it is a sum a session based upon the underlying facts of the case and does he get to look at all the underlying records is this or do can first of all got to be a certain type of divisible crime david look at the record have i got to allow him to go outside the record to get all this time stuff what if he can't come up with that and it's inconclusive then and no  concession and i believe that's what judge smith was asking about was whether or not he had previously disputed whether the concession was reliable getting into whether it was just sauce or not exhausted i needed the the b i a in the second decision relied on it they seem to be right so i don't know right these are two questions there's the concession itself as to what did the alien can counsel concede and it's the fact that he was a person found guilty of the offense described in section for all four of the controlled substances act which is simple possession but it's general ok and then he hasn't been convicted of another one and he hasn't ultimately the question is what was he convicted and was it a simple possession a crime could there be an analogous one writes and i don't think the company has anything to do with it he concedes that this isn't simple possession in fact in his brief  of a crime that includes transportation right which is not simple possession is precisely what your own i was saying right yes i mean i honestly i understand the california thinks there said it and thought even before here no challenge to what drug was involved alternately we have an individual that's trying to find an exception to his conviction but he's not disputing his attorney's concession as to what he was convicted and without that it  really leaves very little for the agency to do ultimately he is bound by his of his attorney's concession it was a tactical decision so as to be able to pursue discretionary relief or to try to find some sort of exception he wanted to maybe obtain  door to all these alternatives to it he did the attorney made a tactical decision which this court has recognized as not necessarily a bad idea in fact this case is on all fours with terrorism here which involved possession of cocaine for sale it's entirely the same as the interest in moving things along and also pursuing discretionary relief that might require some exceptions based on that conviction and different interpretations there of he wants to argue that it was simple  or that it was transportation and that transportation is akin to simple possession those are all arguments you can make and that's a tactical decision but arguing about whether or not he was convicted that's something that that counsel chose to do and we have no argument here that that was not a tac