petitioner legally immigrated to the united states nearly twenty three years ago at the age of six and has extensive family ties in the area including a ten year old daughter in october two thousand and fourteen he pled guilty to california health and safety code section eleven three sixty a specific transportation marijuana because of this conviction which has since been reduced to a misdemeanor he has been in detention for three and a half years the government review the v a s denial of administrative folks or as you know your tourney general in the case of matter of castro tune has referred that case to himself for the purpose of deciding whether the b i a has the court determined that this court does have jurisdiction to review ministry of closure issues because the matter of states explicit factors for the court to apply and i see how as a clear standard to apply to the case i question to you is what do we do if anything with the fact that the attorney general has that matter under submission i'm not sure at this time your honor that affect your argument with respect t the the nature of the criminal conviction but no your honor as far as the nature of the criminal conviction the ministry of closure issue is unrelated  and transportation should not be excluded from the personally use exception in fact the language of the statute itself suggest that congress intended to include offenses other than simple possession of congress uses the word involving which is specifically important in this case we knowledge that the b i a has deemed the language of the personally use exception to be interchangeable with the language of the simple possession exception however this and undercuts the plain language of the statue the term involving is broader than the word of the oxford dictionary defines involving as including continue as a part so accordingly the personally use exceptions word or use of the word involving would mean that the conviction includes or possessions for one's own use rather than simple possession this korean rivera's sanchez declared that section eleven three sixty eight as it existed in two thousand and fourteen the year that position was convicted criminal lies transportation for personal use consequently the possession for personally use was included as a necessary part of mackie's out of fourteen protection but you're your client and train your client was convicted of transportation yes your  honor so are you asking us to look beyond the statute to look beneath the elements of the statute of which he was convicted to what he actually did  yes your honor there could be two approaches to that if it's the circumstance pacific approach than the court would have to prove that it was not for personal use since the state case law state of the case law states  that transportation can be transportation for personally if it's a categorical pro choice then we need to assume the minimum conduct and look at state case law and under state case law you look to the facts of which criminal conviction can result and looking at people of iraq jurors we see that transportation can be convicted as transportation for personal use it's a novel way to apply the categorical use of never heard that before so you're suggesting that instead of looking at the face of the statute and comparing it in a tailor analysis to what the federal comparable would be that we somehow imply  is divisible but once you have a divisible statue you can look under the modify categorical prochoice for instance in this case a guilty plea and you can identify that it was the transportation prong i'm going to use i thought you said we exactly exactly your our point once you identify as the transportation pronk the transportation pronk itself is indivisible so when you have it end of is of all pronk you look to state case law to determine the minimum conduct which could be criminalized under that the reason that the transportation problems in the visible is because as this course in rivera's sanchez it can result in transportation or a commission result from transportation for personal use the federal probation that we're dealing with time it makes the exception of a single an offense involving possession for one's own  that's what he said he wasn't can actually convicted of possession he was convicted of transportation and your argument is that possession is obscene within transportation so we should say that it's actually possession within the meaning of the federal provision yes you are saying my time is running out i really responded to that letter you understand the value of your time yes your honor thank  good morning your honour's i'm erica miles for the attorney general matter i just want to make our first argument for the reasons discussed in our brief the court can dispense with this case entirely under the futility doctrine and the rodriguez case he has two convictions it's not a single  fense if there's this is not in dispute and that alone dispenses with this case the exception cannot apply to him the board would be bound if you were to remained back this court can decide it it's a legal question you can dispense with it now we can go beyond the grounds offered by the board and i recognize the authority of you cited but if the board and sent all that be easy for us to say right but it didn't have it what is made clear there were not supposed to adjudicate things the board did judy kate so how can we do that there are exceptions and that's under the futility doctrine in this court specifically recognizes in fernando's through ease when the board where the word has determined someone's removable based on a conviction and that this court's review is denote which it is here and it's a legal question that remain and is not necessary so the outcome would regardless of the approach that is taken in this case he cannot even categorically show that the exception applies he cannot show under the modified categorical approach that the exception applies but the government's position is those approaches don't apply the circumstance specific approach does but how ever you look at it whatever approach apart you apply he cannot meet the requirements for the exception all of the conduct that is criminalized under this drug statute eleven three sixty as a transport import sale furnishing giving away all of that is beyond possession even if possession is part of any of those it's still possession plus it's beyond and the current authority as recognized by this court the words excuse me interpretation is read as recognized by this court and rodriguez and multiple other decisions is that it must either be a simple possession offense or something closely related but not inherently more serious and here we have an inherently more serious statute in the california supreme court said so it is more serious in that the conduct the potential for harm and transport is what raises this to a felony offense rather than a misdemeanor it's separately criminalized under this provision verses possession the misdemeanor statute there's every indication here that this cannot fall within one exception which is meant to ameliorate only the potentially harsh immigrant immigration consequences for the least serious drug violations even though the supreme court has said this is for the most trivial of marijuana possession offenses and pedia the bird is on solid footing with his interpretation the court should know it deference and find that transportation just is well beyond possession and for one's own use you asked a question your honor at the beginning about administrative closure and jurisdiction i don't have an official answer position from my office on that but typically the answer would be i last until the attorney general finds that there is no authority for administering closure i think the status quo of the case law is in a fact so this court's recent ninth circuit decision finding jurisdiction would be the case you apply questions for me i will sit down thank you thank you thank you  good morning good morning honestly it please the court my name is gabby i'll go but since i am also representing my take out your nose i know this case seems a little confusing but i'm going to try to simplify it the main issue here turns on requirements of this list for example they said that being under the influence was more wasn't hedley more serious however and matter of some the da had said that being under the influence isn't more serious than possession because it doesn't have the possibility of being dispersed out into the community after you ingest it all with respect to this particular factual situation do you have any case from our circuit for that matter any other circuit that agrees with what you're telling us in other words that when you have it you just focus on transportation that we should assume that what they really mean is the least effective is you've got to possess something in order to transport it and that's what we should the personal use exception but in the plain language there is nothing that excepts transportation being under the end being under the influence from possession transportation in bars possession in california a let's assume that you have a multiple convicted drug dealer with a thousand kilos of heroin use it to you that when we construe the do look to the minimum conduct the supreme certainly in the drug and the quantity well the difference is whether you apply the categorical approach and the circumstance pacific approach and your hypothetical it would depend on whe various states across the nation had thresholds for the amount that he was carrying this is exactly what happened in your mind where the court found that the only way that the me into port ability that would be rough with any meaningful obligation is if they have applied the circumstance specific approach however many states in fact thirty six at the time that the personal use exception was in acted had that threshold over and under the thirty gram exception amount therefore you wouldn't apply the circumstance pacific approach under the supreme court's analysis you would apply the categorical approach your time is over me and my colleagues we have an additional questions we want to ask counsel this your position really revolves around the use of the give you too bad a time that's just part of what we have to do here you know but we very much appreciate your argument you both did a fine job and we thank your attorney supervisor for being involved by some other fine students this week as well and we hope you'll continue doing that and hopefully come back as well as practicing lawyers that would be good case just argued is submit