confession st to waiver the government did not raise the issue of visibility below and so this court does not need to reach that issue your honor the only issue on appeal is mr smith's eligibility removal and the government has abandoned every argument made on that issue to the agent and therefore forfeited the only argument it raises as to that issue on appeal in essence the government has worked at the argument that seven point one is divisible and that the modified categorical approach and no manifest injustice would result if smith were permitted to make arguments before the agency that his removal should be cancel the government raises two entirely new arguments on appeal confession which i'll address in a moment and that seven point one a is divisible however below the government argued that smith's new york and jersey convictions offenses and the government has abandoned those arguments on appeal and shifted their position divisibility and analog and i think it sounds like your argument is that we can't even consider whether the provision of goods is divisible even though that's a question of law because it wasn't raised below by the government see decision on grounds other than what the agency found and in this case the agency ruled that mr smith was in alabama because his new york and his new jersey convictions were categor and i think we need to realize or understand what the visibility is to see why that is the case the visibility requires two things st there are multiple alternative offense element rather than alternat you and your colleagues for the very careful brief that you wrote here it's been very helpful but i just ask you to address the state vs your dune and the new jersey cases that appear to say as a matter of new jersey law that the identity of the drug is an element and it seems to me when i read mathis that the supreme court has told us that we're to live and die by the state's own construction of its own laws and if the state of new jersey decides that drug identity is an element and not an alternative meanings are we just stuck with that one way or the other so could from the public property and masses does say that if the state does definitively decide that something is the element then the court is bound by that but new jersey has has not decided that issue and the government cannot rely on that heavily within its brief because new jersey has not decided that and said it is alternative sexual means of some appoint one day but the government argues that because some point when they references section five then and because section five is the alternative punishment based on the specific c d s and automatically seven point one has a specific to us as an element but that's not the case the basis of that argument does not apply simply when a some point when it does not give out different punishments based on the specific city it doesn't even list  state courts articulation of elements for five point five should be incorporated into seven point one and i understand you to be saying that you know that those those cases should be cabin to five point five not imported into some point one but how do you deal with the weighing in jersey courts have construed five dollars to say that the identity of the drug is an element even if the different drugs don't yield different penalties so i could understand your argument would be stronger it strikes me if say the differences between charging cocaine and marijuana and they would trigger different penalties the problem is there's case law saying that if someone hits from around with say cocaine and heroin each individual drug must be brought as a separate unit of prosecution or separate count a separate violation of the statute even though they would not trigger different penalties so i guess what i'm wondering is if that's how new jersey interprets five  so in other words you have a multiplicity problem if you charge drugs in one county why should we not treat seven dollars or presume that new jersey would treat seven point one the same way i don't know it's my question is clear yes it's clear your honor so the sickest the sale of two different drugs are two different actions and those specific drugs are alternative means of satisfying the element for example we can compare to burglary so if a person burglarizes two different structures those are two different actions now what those structures actually are are factual means of satisfying the structure element the st point i will attract is is the argument that the government that the board did not address the divisibility issue which sole reason the board and the immigration that the board did not have to do it here because the difference is when when there is a formal admission it is treated differently than it is  which itself was a very similar situation where the alien admitted the factual allegation about cocaine the board also in matter rossa which was a lot of by the board here  footnote that it did not need to address the visibility but it said that it held it concluded that the new jersey statute is the visit is divisible by its controlled substance terms so by mean it is not a fact in the sense that we consider finding contract whether a particular provision of new jersey statutory law called within the scope of a particular federal law right that's not a fa ds conviction this new jersey conviction for a nd degree offense and was ok cocaine and he did not deny that factual allegation to gus deny the inclusion of cocaine in it but he admitted that h framework and and it and even if the court is uncomfortable with relying on this this formal admission itself there are conclusion the court is able to do so because of it's the novo review of the finding of whether a stake or conviction was a drug trafficking aggravated felony and the only reason the board did not get into that now is because of the way mr smith presented his case before the agent he presented it with this concession that involved cocaine and we've had a ball in the manner that section's out the non remunerative transfers of marijuana in a way to do that is look at the fact that the controlled substance to her is plus the plus the fact that it was done within five hundred dollars public property and if you look down to what are the elements of the general condition under under five that includes the case law shows that  merged and so that is that is a strong indicator that it is an element under both the general provision under five and also under the seven  thirty grams if we are going to draw the line very finely then this court will have to choose between one of those terms an ounce and thirty grams which are not precisely the same amount and so the argument is that this is an alexander new jersey law on precisely one ounce is that a misdemeanor or felony precisely one out i included one out strength it could yes and then we have held in colton that a small amount includes an ounce which is a misdemeanor right i mean there's i know it's a very small line but an ounce under federal laws misdemeanor and an ounce under new jersey law is filming and they just don't line up if you land at that argument we're comparing the minimal amount  you may lose by a hair but the fact is you're on the wrong side of the line right if if if if if it were down past the formal mission and the divisibility by controlled substance or this and then yes it would it would be a loss by air and i just want to be clear that i'm not saying i agree with you it's only assuming you get past the divisibility analysis could you just spend a minute really element first reasoning is that because seven point one requires the elements of the general provision under five plus the location element and five itself requires a control so it's just a logical step forth and in addition he just thirty three and thirty four of the government's read numerous new jersey state cases show that they treat they treat a controlled substance term in the same manner under these protected offenses as element that they are treated as if differing each if you had a bag with two different drugs in it and were in a public park and caught there you would be charged with and convicted of two offenses for under the under the thing that this is markedly different than then and how it's done in new york in the harbin decision if you if you look at that decision when that this court discusses the new jersey cases there it's the opposite it's if you had multiple drugs it doesn't matter it's just any drug that's not so new jersey treats it differently that's what matheson struck that we're looking at the government should knock at rd bite at the apple it would be a different story if the government raised that issue to the be not reached that issue in their decision but the government either raise that issue to the  will on that issue and secondly i would like to point out that mr smith's only concession below were to be brute facts to plants conduct and he made no ignitions about the elements reasons they are structurally different as in there is no section five b how it out laid out the differing punishments based on the different c d s as there is no such thing for seven point one day there is no such thing as different punishment regardless of whether it's in the statute or not and also this is completely consistent with this court's precedent harbin what it says if there are no different punishments then we will treat it as a factual means and not a different element