help us out so we appreciate it just for us thank you we have several cases that have been submitted on the briefs and i'll just mention them st and then we'll start  good morning to the court thank you for having me here to argue on behalf of my client and thank you judge present for being here all the way from florida my client is a statele palestinian who is subject to an order of removal before the b i a they determined that he was ineligible for all of his requested applications for relief based on and eighty two conviction for unauthorized distribution of psilocybin under section twenty two dash forty two dash two of the south dakota codify laws based on that conviction he was allegedly sentenced to five years imprisonment at hard labor that sentence was suspended based on the conditions that he demeaned himself as a law abiding citizen pay restitution in the amount of two hundred and seventy five dollars and that he leave the united states within fourteen days for a period of at least eighteen months now we we've argued in our briefs that the decision and their treatment of this alleged conviction was erroneous in several different regards and based based on the questions set forth for supplemental briefing i do understand that the court is very interested in the application of the categorical and or modified categorical approaches and evaluating this  conviction but i would like to to briefly go into arguments first two arguments in this and in the briefing which is that the conviction should not be considered as valid for the purposes for immigration purposes and if the spewed in this case that that that provision of the sentence is illegal under applicable law if we determine that the two thousand and one amendment was not a clarification but rather  yeah well yes that's that's that's really one small part of arguments that the two thousand and one amendment is about whether somebody can be can be convicted of possession based on having having a metabolite of of a drug in their bloodstream and that's that's what you're referring to correct right right two thousand and one an amendment to the statute of conviction as the c l section twenty two does forty two does to correct and if any term and that's not a clarification of the law but rather a change in the law what arguments are you left with but we're still arguing that the that the conviction itself should not be considered as valid for immigration purposes based on the legal provision of the sentence that he leaves the united states we're also arguing that the that the that the sentence of five years imprisonment at hard labor should not be considered as valid because this is it's basically a loser e sentence which is which was imposed only in order to try to make him leave the country it wasn't they never sought to impose it and although that the provision that says he has to leave the country was stricken based on a later application for post conviction relief argument is that just striking the provision doesn't it doesn't it doesn't cure the legal aspect of the sentence as a whole in dealing giong they specifically the court specifically considered a conditional sentence where someone had a choice between either one sentence or leaving the country and the court was very clear that the entire sentence should be viewed as illegal based on the provision that says that the orders them to leave the country  and that it's not enough to simply give someone a choice in order to i don't want to surrender a sentence of that nature to be legal here you successfully collaterally attacked the unconstitutional nature of that sense that you know that it's correct that the that that the that the particular provision was stricken by our opposition is that simply striking the position doesn't cure the sentence because because of the conditional nature of the sentence the fact that he that he was ordered to leave the country was as an alternative to the five years imprisonment hard labor and  so if once you strike that prison provision what you're left with is that in exchange for for suspending the five years imprisonment at hard labor sentence all he was required to do was pay two hundred and seventy five dollars and demean himself as a law abiding citizen so and that in that context it shows that this five years imprisonment of hard labor was not a real it was not a real sentence it was not actually judge that is what that is our st argument in this case is that the legal sentence renders the conviction invalid for immigration purposes the nd argument is that even if the conviction itself is valid for immigration purposes the can the five years imprisonment of hard labor sentence which is just the opposite side of the coin being of this of this condition of of the of the provision telling him to leave the country is invalid for immigration purposes now moving past that assuming that the conviction is valid we still argue that that the conviction is not a controlled substance conviction under the categorical approach the  included on the federal on the federal special schedules so the the b i had determined that this is a this is a divisible that that the statue of conviction is divisible with regards to the particular type of of controlled substance which would mean that the specific controlled substance is an element of the conviction now mr  ok so argument that the statute of conviction is not visible with regards to the specific the specific substance is based on south south dakota supreme court case which is i'm sorry  which is the overbet and this is a case that shows that you can be charged with a generalized a generalized charge of a generalized controlled substance charge where they don't yet know what the substance is and i was a case where police arrested in charge somebody based on a white powdery substance and based on scales and bag he's and it was not till subsequent laboratory analysis that was the term it to be matt methamphetamine eighty six and nine hundred and ninety three is where they explain that you st look to the statute and then you if that doesn't speak to it then you look to the case law and if you still can't tell if it's a divisible statu then you could look at shepherd documents to determine whether the specific the specific substance was actually an element and if these documents fail to speak plainly then the modified categoric approach has no application which would mean that as asc as this as the statute itself is overbroad it does not constitute category a controlled substance offense categorically to all of your arguments regarding over breath depending on the conclusion that the two thousand and one amendment was a clarification rather than a change in the law no your honor that's that's that's not the only argument we have regarding over breath that's one of that's one of the arguments the other argument is that is regarding the schedules that the schedule itself as acknowledged for that that the fines which which absences are are illegal is overbroad compared to the federal schedules that there was an alternative argument saying that even if it even if he part of the statute was only official it was only explicitly set forth in the statute after the two thousand and one amendment but the supreme court of south dakota and state the shrader in two thousand and four a few years after the that the statutory amendment they did say they did point out to case law previously where the law was applied in in that way where in the way that it was that it and the way that it is after the amendment so regarding a realistic probability even though the state supreme court they said in state the shrader that they that they had declined to previously decide the issue they did point to several cases that preexisted the change in the statutory amendment but where the later later version of the law it was it was applied in that way as it was after the statutory m dollars to constitute a controlled substance offense and aggravated felony drug trafficking offense as defined by the controlled substance act and the i and a the government contends that those drugs the drug is an element and such is divisible and the divisibility is supported by the cases that we've listed in our supplemental  and our main brief as to the questions that the court raised with regard to our supplemental briefing the government contends that overbroad because they list additional drugs but those drugs are again they're divisible because they are elements and this specific drug in this case  berkman state v berkman state the fox state the rotor and even one that the petitioner has used sun drill all four of those confirm that the drugs are in alabama what is your take on the two thousand and one amendment was a new law or was it clarification of old south dakota law that it was new law as we language stating that it is reasonable to infer that the legislature was responding to questions raised in prior cases regarding the issue of possession in of a drug in the body so the government believes that that it was a that it was a change to the law and it created a nd way to for prosecutors to establish possession  of a of a particular drug also and state the whistler and that case the south south dakota court acknowledged that the two thousand and one amendment as i just indicated created two potential ways in which possession occurred as to a particular dr looking at the analysis that was made by the board with that regard to the government believes that it was it was harmless error that the board had indicated that it was a clarification rather than an amendment the cases with regard that were listed and identified by the petitioner overbet blakely and hanson the government  these these cases dealt with a different statute than the statute that is before us today so as to the analysis in this case the government believes that it is very clear that in this matter the petitioner pled to a specific crime that constituted and have a question if a way ask please what is the government's response to the opponents argue it that the illegal  conviction renders the conviction a no the or avoided it the government contends that that is not the case here you have a state court  first the petitioner pled to this conviction there was no trial he pled to it the state court of south dakota then review that sentence and they removed the portion that the petitioner requested which was that he leave the country and so what was left of the the conviction and sentence the government contends is proper and it is fits and satisfies the definition under the federal federal statues how do you deal with his argument that the five year sentence was the loser a he was never served right well i don't know that i don't know that to be sure the state court upheld the five year sentence what they what they vitiate it was the fact that he leave the country  so there's been there's been no record evidence that's been put forward that that that sentence was was somehow suspended for some other purpose besides the court just granting a suspension of that particular sentence due to the crime if you will and based on that five years both the conviction and the sentence of five years  satisfies all of the the the laws of the i and a such that he's both been convicted of a controlled substances act as well as an aggravated felony so in conclusion here the record established that the petitioner had been convicted under a state statute namely unauthorized distribution of a substance with high potential for abuse namely indicated earlier the petitioner pled guilty and two state courts reviewed and confirmed the conviction the nd state court did vitiate the removal of the portion of the sentence from the united states the immigration judge then reviewed this case and held that petitioners conviction was a categorical match to a federal crime the board then review albeit they came to their their decisions a slightly different path but the board then affirmed immigration judge's decision and held that the petitioners conviction was a categorical match today the government asked that this court should hold that petitioners conviction is a categorical match that the state conviction is a categorical match with the federal law  that because of that the conviction that this petitioner is not eligible for whatever relief is remaining that he didn't wave or fell to exhaust before this court so accordingly the government the rest of the sentence and the conviction itself to be valid now and making that decision to be a day they said it was based on two prior b i decisions which is matter of kota and matter of song which those cases are not analogous to this because they don't include illegal provisions all of the b i had a situation suggest that these cases are directly on point now those cases they say that for immigration purposes we give full credit where if supposing somebody is convicted and sentenced to three hundred and sixty five days and that gets changed to three hundred and sixty days now so that kind of can that kind of post conviction relief doesn't have anything to do with the legal sentences and being that this is an unpublished decision the board is not entitled to any particular deference on this matter it's not it's not like they're actually stating a position they actually made a fairly clear error by relying on their own case law in a way and because their own case law in this case was not analogous and is and is distinguishable and does not speak to the issue of of do using post conviction relief when the sentence itself was illegal at the time that it was issue and one other thing that i would like to i would like to mention is that at the time of the b i made a decision in this case that since then there have been some th circuit cases that are are on point regarding the burden of proof  this is a case where the petitioner when he was before the immigration court he had the burden of proof in establishing that he was eligible for relief and in so far as  v sessions in two thousand and seventeen and marine orana recession's in two thousand and nineteen and as i see that i'm running out of time if there's any more questions or otherwise i would just thank you for your traveling so far from new york and watch and you see to help educate us merits of this case and we appreciate the case shall be submitted we thank both council for their excellent arguments