the general position but as you know of course our our court has some law on this kind of issue we've got other propositions other statutes for the purported to change what was a felony into a misdemeanor and so on and one of the real questions that we deal with is whether the underlying conduct in the case was changed in other words was there or was that was there a material error on the part of the judge below was there a fault of evidence in other words what would it have been overturned in some other way other than in this case prop sixty four is there anything in the  discussion to we have to assume that but for projects before and nothing would have changed is that right yes ron ok thank you first california passed prop sixty four because its prior marijuana laws were fundamentally unfair in the words of governor knew some problems sixty four provides new hope and opportunities to californians primarily people of color whose lives were long costly broken and racially discriminatory system of marijuana criminal isolation unquote if miss prado had been convicted and later evidence showed that a racially biased police officer prosecutor or juror had tainted the trial thanks clearly post conviction relief on that basis would fall into pickering's procedural and substantive defects and that's that's what i was asking you before so we're not talking about that we're just talking about the effect of property for for purposes of our discussion i assume we're going to put aside the racial component we're going to put aside any problem that occurred in the trial and some constitutional or other underlying perceiving right and so we looked at the substantive defects recognized by prop sixty four and so those substances in the lot self you know sometimes the people who write these ballot propositions don't think them through we would have a different case with what prop sixty four did was give sentencing judges in the state of california the authority to at their discretion to designate any marijuana conviction as a and then if they wish to exercise their discretion to determine that the offense is a misdemeanor versus a felony be a different case where well your honor that is what prop sixty four just not what it does it does not tell misdemeanor and can decide even if the conduct meets the new felony you can still sentence it as in this to me or the b i a error because the only way this product could have qualified for a misdemeanor was under the new subsection be alive in three five nine the key to this case is that prophecy for is not like prop forty seven that just reduced sentences prop sixty four re wrote all eight marijuana offens the new crimes and the modified sentence flows only from the new elements of the new crime back to judge smith's question which bottom as i understand is  policy for purposes for california law for each voter initiatives as if they were legislative initiative or legislation i understand that you could even amend the constitution the question the state courts rationale for vacating a conviction and under pickering immigration courts must recognize california's policies again that their former marijuana laws were fundamentally unfair prop sixty four set up an entire industry to seemed to facilitate the lawful possession and sale of marijuana this is significant in california determined that past criminal conduct well no longer be a felony and what the licenses can now do with an illegal well let me ask you this i was involved in some cases here involving medical marijuana and people did conform exactly they had  problem we also have schedule c which has not been changed in the united states code if you're a bank and you take money from a marijuana distributor you've got a problem and the people who put it in there have a problem because it may be money laundering so i'm challenged i'm struggling with the same issue i think that my colleague is it what you seem to be saying is that the people of the state of california have the right to in effect change federal immigration decade after the fact but she was convicted under an earlier law and that law under federal previous law found that she qualified to be removed based upon that conviction you're saying well reclassified well fine but the underlying conviction as we stipulated in our discussion was not tainted by anything any problem racism whatever all that happened was that the state changed the punishment so both my colleague and i and perhaps judge lynn as well are struggling with the fact that we got federal you've got to say i just wrote an opinion yesterday about three california law if they've kind of got a we back and forth and some things work and some things don't but here you're talking about a federal immigration law i've never understood that the people of california are indeed the people in the legislature california had the right to change federal law that's the role of the congress and the president and so on and that right yes your honor but her conviction changed and that i'm i'm sorry for miers looking at the elements of her conviction and under prop sixty four on page ten of the second a done on the most part is opening brief you'll see that the old eleven three five nine offense was just one sentence long had no subsection and was only punishable as a felony on it are you saying then that under the old law say there was whatever it was that there were five elements to it and and she was convicted under that old law with the five elements and there was a jury and everything was fine there was no problem with racism or whatever and that state of california changes the law to make it a nine element crime totally different measure you're suggesting that that fact would change altogether the way federal immigration law would have to treat  is the people the state of california in their wisdom of course conclude that marijuana is a wonderful thing there's absolutely nothing wrong with it and what jeff sessions thought about it before it was crazy that controls for purposes of federal immigration law is that what you're saying pickering says yes your honor and california courts the people the more smeg jones and johnson show that prop sixty four did create new crimes and made the actual active eleven three five nine b or the new felonies subsection eleven three five nine see it is impossible for her to have a misdemeanor under the old law page eleven over second a dent in the opening brief list this new destructive offense subsection b is the new misdemeanor for those who possess marijuana for sale and subsection c is a new felony applied to those who possess marijuana for sale and who have  agreement and dovi harris the california supreme court said yes when applying new meghan's lot richer alack to flee so that a registered sex offender must have his identity made public a new law contrary to mr and the supreme court also cited to do the arizona recognize quote the california legislature has power to change the law retroactively unquote and harris the superior court property seven reduced the defendant explaining that prop forty seven's recall procedure did not rescind it the agreement it simply amends it as applied to this prado and twenty fourteen she was guilty of eleven three five nine as the state then  that the california determined that this past criminal conduct will no longer be a felony and with a license can be legal and the and her but but bottom line is this was changed for public policy reasons not because there was anything wrong with the trial that your client got it right well how when your voters decided that it never should have prosecuted marijuana laws in the way that it did for an reform it remedies a broken criminal justice system when you when you refer to pickering are you referring to the decision and the projects before is not expungement it doesn't reward reform it's not like a first offender statute which stopped the tries to stop on want to conduct to the crime for prop sixty four and legalizes adult use of marijuana and with a license for most of the sale of marijuana as legal and foreigner decided to prosecute a person today for possessing marijuana that person we would have to dismiss the criminal proceeding because of prop sixty four no your honor but a conviction today under under state law would be overbroad to the federal definition but bob sixty four would have nothing to do with the decision of federal authorities to pursue criminal sanctions for marijuana possession today and correct yet for federal purposes yes your honor that moncrief requires looking at this state in the morning please the court genevieve kelly representing the united states your honors the issue in this case is whether the passage of california's prop sixty four changed the immigration consequences of miss seven eighty two was convicted at any time after admission of an aggravated felony and a controlled substance offense the definition of conviction under the immigration statutes is backwards looking as this court has recognized time and time again it refers to the elements that a jury must have necessarily found prior to the conviction or that the defendant must have necessarily pleaded to in this way the immigration consequences result only from actions that were proven to have been committed beyond a reasonable doubt and only from actions that the non citizen knew or should have known had criminal and immigration consequences argues for a new rule that the backwards like looking definition of conviction applies only to expungement but not to a reclassification scenario such as hers the problem with that rule is that with this new carve out that mr prado is arguing for it would result in individuals who have been wholly expunged by a state having sterner immigration consequences that an individual who's state conviction was merely reclassified it would go back to the original problem that this court recognized years ago which is that applying a definition that way would unfairly and  apply the word conviction to different states schemes around the country mr prado also argues that prop sixty four is not merely rehabilitative however  the board in this court have recognized rehabilitative actions are post conviction of evidence and the distinction is between state action that occurs after the fact and action that occurred prior to conviction that is newly discovered such as some bias or some problem with the underlying conviction i think employers arguing that we should essentially although there's nothing directly argued defective about the original conviction that we should look at the policy issues behind the proposition and apply that as if there were an unfairness in the underlying proceeding i believe that is the argument your honor and that would result in the same problem that the court has analyzed before which is that states are going to have different schemes  whereas in the immigration law the point is not just that the federal statute does create some deference to the state statutes by defining conviction there has to be the categorical match with the state statute and yet the nonresident him or its purpose which is really a public policy general purpose that applies to everyone there's an assumption that proposition that everyone will get relief and all she had to do she didn't have to have a hearing on the facts of her prior conviction she just had to submit her application to the state j i three points to make your honor first i'd like to make a quick correction jobi harris is actually a state case however it's a certified resulted from a certified question from this court it was later recognized by the supreme court case  reduced to misdemeanors prop sixty four also reduced sentences but prop sixty four it did so much more it changed the crime itself because the underlying conduct is no longer you legal prop forty seven did not say that marijuana with a license is and there's a good thing or it's not a bad thing it's just saying it's a legal thing your honor ok i think i don't maybe that's changed as of this morning and i was but i immigration courts must recognize california's policy decision that their former laws were fundamentally unfair but why i think all of us who wrestle with this issue you obviously you all are very smart people system we have a federal system we have state system and immigration law is wholly controlled in terms of the immigration itself by federal law you have a backward looking system somebody is can been convicted of something we have case law that says that that in this particular case is an aggravated felony which is a defined term under federal immigration law there's nothing that i'm aware of in this conviction in terms of the elements proven or pled that has changed all that has changed is the state of california in its wisdom has computers a matter of public policy that is going to punish things differently but that's the state system why should the state of california or any state have the ability to change federal immigration law based upon its public policy decision so there's two parts that question first the reason this underlying conviction has changed to no longer be some where the federal definition is that california actually changed the definition of marijuana itself and now regulates under the same statute more substances than the federal even if you did proposition sixty four conditions it was not a proposition sixty four conviction restored as it was in a sense it was a case of determining whether or not post conviction relief should be given full faith and credit for immigration purposes and even if you disagree with our exact reasoning or is it your back proposals for why post conviction relief is given under torres and math which is another ninth circuit decision the government must prove with clear unequivocal and convincing evidence that post conviction rate post conviction relief was given solely for immigration or immigration hardship or rehabilitation if the state does that numbers of stay at this stage done this for the sole purpose of influencing federal law that what though his brother was convicted that under previous federal laws she clearly had no rights that you're now claiming and that because a state made the change the government the federal government has the burden to show that she doesn't get really how does that work pressures and the way it works is beat mr prado was originally conviction twenty fourteen right next edition would have served and she would have been aggravated felony however what happened is california fundamentally changed what her conviction is when she profile mixes of state law yes your honor but through that process they also change the actual crime itself that she was convicted of and because of that change is now overbroad to the federal definition of marijuana and the government has to prove that her conviction was not a she was not given post convention relief solely for the purpose of relieving the gratian consequences ok but we let you have your five and a government as well so the case just argued is submitted thank you very much