and she was granted asylum in two thousand and six as a derivative and later placed in removal proceedings following her conviction of two counts of attempted sale or transport of a dangerous drug well all right we sent you a predicate would be that the crimes which stephen was convicted were not aggravated felonies for purposes of withholding and you didn't talk about that in your opening brief and so and that what it states there is only aggravated felony sin which the alien was sentenced to at least five years imprisonment are categorically particularly serious for the purposes of withholding of removal so it seems like that case would be would have been helpful to use and and and it was decided three years before the opening brief so i'm wondering we found it but why didn't you yes and and why should we even consider it at asking for would be a rematch and but why should you never did you know that the government never had it that doesn't mean she did when necessarily right correct it just means that when categorically happened so why should we consider it at this late date well because there's prejudice to this case and withholding the friend has coup standard is easier to show than the standard used by the immigration judge to talk to the government about that while i'm sorry that have you talked to the assistance to you well the ninth circuit implant dino medina did discuss whether they should give deference to to the case might matter y l and what they stated was that they would agree with the  to felonies with a sentence of five years or more or per se particularly serious crimes all convictions outside of that category need to be analyzed on a case by case basis using the factors and matter  cases or particularly serious yesin matter of why all that was held that drug drug trafficking aggravated felonies are presumptively a particularly serious crime and that the applicant for withholding an application would need to rebut that by showing extraordinary and compelling circumstantial why isn't that another were and the drug trafficking part of it may not be particularly serious but why felony for that purpose right no it doesn't although we need to show is that while analyzing the conviction or the circumstances of the conviction under the front desk the standard that it will  aside from the five he as i understand it forget the five years an aggravated felony drug crime is particularly serious except in certain circumstances correct up so it's something whether it's an aggravated felony or not doesn't matter for aggravated felonies they are saying while doesn't do that it's only with regard to aggravated felonies right so while looks at it and it says if this is a drug trafficking average aggravated felony it's presumptively also a particularly serious crime  what we're saying is that the immigration judge regardless of the issue of whether it was an aggravated felony or not needed to analyze it using the francesca standard and the factors in that case and that wasn't done in this matter well going back to decision why why would we trump it because the statute in question is not ambiguous the statute in question says that there's only one class of a per se particularly serious crime all other crimes need to be analyzed using the standard that that's what the statute says that's what the ninth circuit is established and can read you know the response of the attorney general is obviously a response to this case seems to me are you saying that we don't pay any attention to the attorney general's determination of serious crimes yes we do let me restate that we do not give deference to the attorney general in this particular case we are in the ninth circuit so there are the issue is whether we follow the to attorney general and the fact that the requirements in that statue need to be followed and that's what wasn't done by the immigration judge they instead analyze it under matter of y l when again the statue requires them to to do withholding right correct there's other really think you're asking for a second right yes so petitioner also applied for asylum oh she had her asylum status terminated and then also she was found in eligible for asylum based on the find if she'd been convicted of an aggravated felony and so as i understand your contention is that her convictions could be aggravated felony use for these other purposes if you want to argue about that correct yes  that she was convicted under arizona revised statute thirteen three four zero seven penalizes various things it has seven subsections within it so that the issue is whether anything in that statute doesn't fit within the generic definition of a aggravated felony and particularly the seventh subsection of that statute details an offer to sell or transport and because offer or solicitation isn't included in the controlled and even that subsection in and of itself is and how do we know that you think how do we know that because it's the elements are separated by the word or any one of those subsections is enough to be found in violation of that and they're not portion of the section she was convicted under the actual plea agreement and the sentencing document show that she was convicted of attempts to sell or transport dangerous drugs but the  colloquy states that it was an offer to sell for transport so again there's conflicting information there there is there is some conflict but when we look at the elements of the crime we don't look at the  see how you i don't see how your argument argument can help you it looks like it has to be an attempt crime which you're going to lose a right well there's there's two steps in the analysis the first step we just look at the statute and we have to determine whether it's a divisible statute or not a question is can you have an attempt to offer yes or no when you can you haven't had time to learn because in this in this case looking at the statute the offer portion of it isn't isn't expressed as an incoherent oftens it's in their right if i understand last night it was but she was definitely convicted of attempted yes yes right in december it would have to be an attempt to offer yes exactly is there such a thing as an attempt to offer there is because if they wanted to include t preparatory offenses such as attempted conspiracy for example there is a specific section of offer within the arizona revised statute is thirteen dash one thousand three of leave and they didn't include that in the conviction so in this case the offer to sell is a substantial to of crime because it's it's mentioned within the drug statute that i'm sorry i'm not understanding i understand it is but i mean that you could put the two  the issue right now is only whether the the conviction record shows whether she was convicted of an offer we don't look to the actual friends they came to offer him by putting a bunch of drugs in your pocket or walking down the street to meet somebody and never actually making the so and this is different in the case the government cited state versus sanchez i don't know i don't how much time the doc has dealt with conspiracy attempt to engage in conspiracy i think if you look at it in a common sense perspective it's plot more difficult to show that those two would go together but i think attempt to offer does and again if they wanted to include offers and in quit office there's a section that they couldn't include in the conviction and they didn't do that and that's that's why it's distinguishable from sanchez i use the remaining time for rebuttal raised before the agency and it also was not raised before this court so it was waived but the government's position is also that plan do you know does not apply to this case that this case should that this court should be bound by the decision and  miguel which is that five hundred thirty nine forty one and in that case this court held that the attorney general and matter of y l was entitle to create this strong presumption that all you know was decided in two twenty thirteen and why wasn't two thousand and two and some mcgill mcgill directly addressed and said that the attorney general was entitled to create this strong presumption and the court in that case said that the attorney general did not create a person a rule only a strong presumption and you know does not proport to overrule and  you know does not deal with a drug trafficking crime so it did not directly address the type of conviction at issue here so the government's position is that even if claimed you know were properly before the court it's not presumption that could be i understand it but the argument here is that she it was a small amount of drugs and it was really one plan not not it was two successive days to the same guy and so ok so the exceptions as the agency to determine that she did not rebut the presumption here or where we had repeated sales of one thousand actual finding that it wasn't one transaction was there actual finding that there was two separate sales there was a factual finding that there were multiple sales to resulted in the two conviction here so is that a factual finding that there were or that we review before with some deference or like your position on that my position would be that the court cannot review that factual findings because of aggravated felony determination under  law holding this particular case is divisible again that is an issue that was not nothing range raised before the ball board it was him saying he did problem because it probably is  visible in all likelihood but i will in the government's brief we did point to the jury instructions the arizona jury instructions that lay out two separate offenses in subsection seven and one is selling transporting importing transferrin of dangerous drugs for sale and there's a second jury and structure instruction that covers the offer portion of the statute says or some possibility that there  is an indication that it is divisible at least into those in any event nobody's asked just at this point but somebody says they will ask somebody so all right so then the next question is five fifty of the administrative record count three in count four and they both read attempt to commit sale or transportation of dangerous drugs there's no offer language in the  which petitioners counsel relies on page six o five the court says your plea agreement does indicate that you agreed to plead guilty to counts three m for each as amended each attempt to commit sale or transportation of dangerous drugs and then the judge repeats that exact wording at page six ten both referring to attempt to commit sale or transportation of dangerous drugs and he asked how she pleads as to each and she responds that she pleads guilty so these so there's no indication in any of the official  or when the judge asked if she was pleading guilty to that specific count that we were referring to the offer of course and what petitioner relies on is the recitation of the facts which is what we can look at under the modified categorical approach and in fact this court m r c a cost quoting to scamps says quote factual admissions made during a plea hearing may be downright wrong and so just because her attorney used the word offer does not mean that she was convicted under the law for portion when we have these other documents referring only to the attempt to get at the sale or transportation of dangerous drugs so based on the conviction documents that supports the agency's denial of asylum because she was convicted of an aggravated felony under matter of y l that is presumptively a particularly serious crime and we've discussed that and we also believe that that record does not compel reversal of denial of cat to furl if there are no further questions so i was struggling with before i just had to details wrong but essentially y l does create a presumption that goes beyond the statutory aggravated felony provision which because that has to be five years right and so withholding statute does authorize the attorney general to designate other crimes or make that presumption because this court miguel says nor is the statute silent with regard to other crimes it's specifically grants the attorney general the authority to determine an alien has been convicted of a particularly serious alright but the question is whether a lousy attorney general to create a presumption the right thing going step brought up how could someone have brought it up we don't have it it's not brought up so you're arguing that it's waived but i'm not i know you're not backing away from that but let's say if he had chosen to do that what could he have done in this consider exercising any discretion as to this particular petition or that would not be a decision that i personally could make i i have not been approached about that's why i asked him i mean sometimes we decide cases but sometimes people talk to our mediators and if they don't do anything in thirty days if they don't want to mediate it then we issue our decision your honor and that would be a decision for  the client agency to make but if we decided to withhold it for thirty days to see if there was anything to mediate that you could talk to someone about of course  and so therefore the fact that he said what she actually did what it doesn't matter what matters is watch what she convicted of you are correct except in this scenario when is what is said as to the factual basis is really very dangerous and now in this instance it happens to cut against her but ninety percent of the time they cut in favor of the defendants cannot rely on what facts are admitted even though they don't really matter to the result and i understand what you're saying your honor it's still shepherd v us states that you can look at the  determine what was the conviction under the visible statute that is one of the specific documents that's reference to find how was she pled to but we know what she pled to she pled to what stayed on the sentencing documents and the plea agreement and those are two documents within the re conviction and then we have the plea colloquy which is another document we must look to you but but that's a factual basis it doesn't say what she pled to that the statement of what she did is a statement of what her lawyer said she did but it's not a statement of what she pled