may please the court good afternoon my name is peter meyer representing the petitioner george for harder hernandez i mean i'd like to reserve two minutes of rebuttal time please there are three primary reasons none of which should be in dispute was the did not arise out of a single scheme of criminal conduct second the government based its just excuse me the immigration judge and the dui against affirmative that decision was based on a determination that the possession of math is not an aggravated felony anymore that's correct your honor so that basis won't do and then under ruse the only thing that we can look at is what the administrative agency relied upon so we can't look at other grounds and say well they'd be good enough that's correct your honor application of immigration laws so that differences in state law do not do not lead to the application of the immigration laws in unbalanced ways throughout the country so that it's the generic definition of th that make clear that under california law there's a much broader definition of receipt of stolen property than made system under it in other states in fact in those decisions one of which is called osborne the other which is called anderson and it's made clear that all that may be necessary for a prime official case receipt of stolen property under california law is that the defendant be in possession of recently stolen property which would support an inference that the defendant knows the not because as has been pointed out there is a confusing record below the only charge that was contained in the i two sixty one notice to appear was the two thousand and one conviction for possession of methamphetamine conviction for which you're saying ok so there was a technical the fact even so thank you what you're saying is we're technically right we're going to lose later but we're technically right now i mean that seems to me to be the bottom line of your position well it's not quite that the question of whether there are grounds for withholding or removal and asylum and that's where this conviction of for a receipt of stolen property comes into play and why it's so prominent in the papers not because it was the basis for the judge's decision below that this individual should be removed but instead because it was the basis for the judge's decision below to forgo any hearing on the application for asylum and the application for withholding removal of the application was made by the petitioner the judge made clear in the proceedings that he was not going to hold a hearing on any of the asylum or put or convention against torture related claims except for the claim for deferral of removal under the convention against torture the basis for the immigration judge's decision was his the terminations that receipt of stolen property was a particularly serious crime as before and defined as an aggravated felony which we know to be erroneous so therefore the judge on an improper understanding of the law did not give this individual hearing on the court his claims which is the political asylum claim it's been was difficult for the individual below the petitioner not represented by counsel to make his case on asylum but this is in the record to make clear all the stated very briefly for all intents and purposes an american although he was not naturalized culturally he's an american who was faced with after forty years of living in this country going to live in colombia even though you're probably entitle to remain under a rare and ruthless act i can't see where you'll ever get a hearing because if you've got a burglary and you've got a i think was i think that two separate crimes on two separate occasions have both crimes of moral turpitude under under control in law so it looks as though your fellow will be deemed ineligible for relief after they've no point to a hearing once he gets back when i know my misunderstanding the judge would need to find that one of those crimes constitutes an aggravated felony in order to deny him a hearing on asylum if he was well represented but he was representing my understanding your honor and i apologize i don't understand very well the proceedings and a lawyer at the detention center and what type of representation is available but i do understand there's some sort of nonprofit organization that does give some sort of you know from the i j a to the v i i that's what i'm asking i don't believe he was represented by counsel in the reason i asked that it is there was a brief filed something of a brief filed to the i a e a and as far as i can tell none of the issues that you've argued here today were raised in that very well in fact the the the failure of the immigration just to hold a hearing on the asylum claim and the whole removal claim was not was raised to the the i it was for the reason that's correct your honor and the reason it wasn't is that the law was developed subsequent to the appeal to the d a on this issue that for every decision there's a two thousand and four decision that's a court my name is sandra mclachlan i represent the responded attorney general of the united states in this case i will in a moment answer some of the questions that the court was asking about the procedural background and so waived or failed to exhaust or in one way or another the court lectures to action over every single one of those merits issues so even if you got past the jurisdictional issue regarding to see ninety's there is no jurisdiction over any single one of those issues methamphetamine was relied on as an aggravated felony as well ok at the time but then forever came down and it's not an aggravated felony anymore that's what was in the notice to appear that there were two cards these changes and there were two charges of for which the maximum penalty could exceed one year the all statute which was changed in one thousand nine hundred six said you convicted of a c i m c and you served more than a year that's all it said it was a totally different statute it didn't address the significance of the underlying offense didn't its address the significance of the c m see it addressed whether or not you got a certain punishment for the conviction and  the others just the possession of methamphetamine that's right as the basis is there some different notice to appear that we're supposed to rely on not the nine hundred ninety one notice i don't recall whether there's an actual notice i believe there is an additional document that was filed by the ins with the immigration court regarding the additional charge i'm fairly certain that i don't i don't recall where in the records that that is when you think might be ninety one noticed i understood that there could be kind of an implied mr part of the board the board has never had an opportunity to address the issue of that to develop the record it is not properly before this court but finally the two c m t allegation was properly before the immigration judge it was submitted administrative record is it demonstrated that he served more than a year for the petty theft with a prior in one thousand nine hundred eighty eight i don't know where it is i believe i read it in the immigration judge's decision just when i i'm certain that the that he actually served more than one year and that is in fact the argument that was made in physicians briefing of how long he served he was still not a back convicted of two crimes that are perfectly serious the november seventh two thousand and one with the action of methamphetamine conviction and the receiving stolen property conviction again in two thousand and one that is without regard to the respondents convictions in eighty eight eighty nine so what he thought was if we knock out one of the methamphetamine then he no longer has to and we have no means the there is a bar against and this is something that petitioners never raise ever either through counsel or by himself there is a bar to receiving withholding of removal either under the convention against torture or under the statute if you have been convicted of something called a particularly serious offense this is not context with an issue which is never been raised here the immigration judge said that you have been found guilty of two offenses that i find to be particularly serious offenses and for either of those you are barred from withholding approval with respect to the aggravated felony with respect to the asylum charge in addition to the other jurisdictional arguments that i've mentioned the immigration judge specifically found that there were two different aggravated felonies that barred asylum marked his eligibility for  this court has insisted that if you're charged and found on the issue of whether or not a person is eligible for asylum it is the obligation of the petitioner to prove that he doesn't have an aggravated in this case the immigration judge found you do have a conviction for something that is an aggravated felony period regardless of the of this issue of removable for if you have been convicted of an aggravated felony and the immigration judge found that he had been convicted of an aggravated felony crime  judge whether or not the alien was eligible in the first respect to ask for asylum even though he had a conviction for a theft offense with a punishment over a year and that in that no the determination that a crime is particularly serious that's what the immigration judge did here he was erroneous in making that determination under the law that much is not in dispute and that decision i just made for you time is have to get your take on this one question he was not represented by counsel before there be any that was not a waiver that can be applied as a matter of law under this court's decision which is one of the decisions cited in the reply papers  do more than just show a waiver and in fact this tragic knowledge of the immigration judge rather did that there was no concession ever movability by mr hart of the low that's straight out of the order so there's no reason to get around the waiver argument language which you'll find in  court the proper background so the remaining question in terms of the two crimes of moral turpitude the first crime was not in fact there is no there's nothing in the record showing that i'm aware of and i've scoured the record the petitioner served more than one year i heard that statement made that in fact government statement is that he was convicted of that first crime in june excuse me july nine hundred eighty eight and then he's convicted in june one thousand nine hundred nine less than one year later a burglary the government has asked the court to ignore the question of whether there was a factual record that this was not a single scheme of criminal conduct in fact it would not have been possible for this individual he was incarcerated  to have committed the subsequent second reprogram receiver certainly a question to say the least on the record as to whether or not this individual served more than one year i think the presumption the indication from the record is in fact he did not serve more than one year on the first