application of the categorical approach leads to the conclusion that mr mason was convicted of a misdemeanor second the ambiguity in this record whether his conviction was a misdemeanor or felony offense is not exactly rebel relevant since mr mason pleaded specifically to subsection to has lots of things going on in it and my understanding is you would agree that just at the outset looking to that statute you could properly applied the modified emphatically conceded that the modified categorical approach is the approach we look at to look at one in particular yes correct yes that is correct that subdivision has various manners and which person can be convicted however at least from for is and that this maybe it's unusual in all of this it may be by itself something where there is one thing that's a safety valve and a safety valve is if you if the immigrant has one petty offense only won with a maximum no more than a year and no more than six months and it's only one i mean if he has to but not going to help so it's a very odd sort of statute right correct yes so at issue here  issa was convicted a misdemeanor which is where peers from the statute to be the default or whether he was convicted of a felony which the statute perscribe his conviction would be a felony if the victim was under the age of sixteen you're not arguing that there's no ambiguity as to which he was convicted right you can see that well the argument would be there's an the prosecutor essentially just reiterate the date of the offense and that mr mason had sexual contact with out consent with the victim but the not reference the age at all so if we are to assume that you know there's some kind of procedural regularity to the  mason was playing to a felony they would the factual basis would have to establish that victim's age i mean from understand what you're saying and i'm not clear the categorical approach lies because meyer said there are some qualifications and you know one is that we're not talking about that you can consider shepherd docs when you're determining whether a statutory prsident a visible statute so we're in a divisible statute and that's what we're talking about but i gather you're and you also have the burden of proving this odd sort of thing it's your safety valve written if i'm understanding you correctly your argument is ok even if i have the burden of proving it we proved it based on the fact that when you look at this police played as the same thing about a sixteen year old it says a person now i'll say you have something else and i'm going to ask your opposing counsel about this the immigration court in consider this but you also have this docket  whatever i don't know how to call it but it describes this is a misdemeanor correct correct the docket was provided to the american judge the immigration judges and considerate because it was not certified by the clerk  d so the issue here for us is that we believe factually all the evidence points to mr mason being convicted of a misdemeanor you think you've met your yes so the issue would be you case it's a mixed lot of fact but you're saying you predict that actually yes so you know either way you know we take a look at this case when we go down to you know we know that he pled guilty missing from their record is whether you know the judge stamped it as misdemeanor or felony however all the evidence around the conviction points to misdemeanors the other reason we believe which section of the statute are we you know talking about we've gotten all the way down to you know the subsection but not i guess the sentencing there's lots of other cases from lots of other so that's right that's a less clear issue i would think but i think at this but differentiates mr mason's case from the other circuits is that we do this is not a lack of evidence it's just you know it was not like he failed to provide the transcripts or the judgment you know we provided there he provided all shephard documents to the immigration court and to the b a a so his burden of production rights question is whether he met his burden of persuasion or if there is one if it's a fact question so we believe you know since all those records were provided then and we know that the specific subsection which he was convicted under then we can presume that that conviction that plea rested on you know just the fact that you know he had proceedings the petitioner has conceded that the reviewable record of conviction under sheppard is inconclusive well yes and he sort of said that but if you look through to the footnotes in his brief  first put not he says the records clear that is convictions for a misdemeanor as reported by the clerk on its website and in a second but not in right on the numbers he said if the basis of his conviction is a factual question he's provided ample evidence outside of those documents so i agree it's a little confusing but it seems to me he's preserved an argument that he has made the requisite we're calling it shepherd but it's not really shepherd because the ins has a different set of documents  what when you refer to different sets of documents are you referring to the statute at twelve twenty nine a c three b that has the list rights and that's something i would like to address that list at section twelve twenty nine  be those are documents that may be sufficient to establish the fact of the key and actually that statute became effective in one nine hundred ninety six that was well before the two thousand and five supreme court decision and sheppard so that list that statutory list those are not shepherd documents there's a distinction there is evidence that a conviction exists and then there's the separate question of what the senate  or the immigration consequences of that conviction might be and what the supreme court told us and shepherd is that we have a very limited set of documents that we can look at to determine sentencing consequences and now that  also been extended to immigration consequences none of that would have courts done with that so you're saying essentially shepherd overrides this and and this therefore i mean would you agree that leaving aside the reliability of this website thing that has the word misdemeanor on it that it would have been either would not under number two an abstract of the record of conviction or a document or record pre packed prepared by the direction of the court would you agree you m record of conviction and then the statute goes on to say that it must be prepared by the court and which the conviction was answered we don't know if this website print out is data that was generated  court in which this conviction was interred and that's because and before that it wasn't authenticated in a way that would allow you to know that answer correct there's a lot that we don't really know about this document that's the website printouts we don't know who created this document there's no indication that it was made contemporaneously with or close in time to the guilty plea in this case we don't know if the information was provided by an employee of the court who had some opportunity to observe the proceeding and record that proceeding in a way that they can attest is fair and accurate we don't know if the parties have had any opportunity to take a look at the information in this website print out and possibly object to it and make corrections we just don't know it from looking get it it looks as if there was a process by which some state employee transposed information from conviction records into an electronic database and just through the process of transposing data mistakes can be made data can be lost we don't know if it's a situation where the database forces the state employee to choose misdemeanor or felony and the ploy you just chose misdemeanor by default and moved on to entering data found that record and i don't know the answer and you think somebody in connecticut forget illegal immigrants you think so my connecticut needs to know where the others a some misdemeanor or felony is there how and you may not know the answer is how in can tell you is that this is not a document that is comparable to a shopper document for the reasons that image of the b i said it i mean there's two things going on here the assumes it has to be a shep strictly that we only look to shepard and we don't think this is a shepherd document your honor and i don't know if the b i would have had the same conclusion had it been properly authenticated what your response to that if you have you answered all these unanswered questions about the document with a b i perhaps have said yeah we think this is you know i think that perhaps if we if we knew more about where the this information came from to create the web site print out if we knew what kind of court official answered this data if we knew whether what kind of documents they were looking at to create this record yeah i think we would get closer a lot closer to this being a shepherd document and maybe it would be but on this record the showing simply has not been made that this is a shepherd documents and that sort of folds into the bigger question here which is the burden of proof the statutory burden of proof ken i cannot just direct you i want to put your argument i know in a larger context what we're talking about is the petty offense exception to the crime of moral turpitude issue correct and so there are three corrects and that's why the question of whether or not this sexual assault conviction was a misdemeanor or a felony is relevant because the maximum sentences are different in connecticut  that your view of our analysis in that regard you start with the categorical approach right and then you is that right correct and then you decide whether the statute  modify the categorical prose just so that you can look at the the shepherd i had the shorter documents and my and opposing counsel did i make an argument today in court that well you know when you look at the plea colloquy transcript maybe that's enough to show that this was a misdemeanor and that's simply not the case i mean again on page eleven of his brief he conceded that the repeal bill record of conviction that is the shepherd documents doesn't tell us if this was a misdemeanor but i think perhaps more importantly than that when you look at the transcripts of the plea colloquy it was fairly clear that the parties had agreed that they were going to ask for a one hundred seventy nine day senate and i think for that reason it makes sense bare bones of assault upon a person there's nothing about a and so i'm thinking if you go back later for other purposes not our purpose for any other purpose to see what is this one would assume that the only wa that crime can become a felony is of persons under the age of sixteen and would not one then also assume if in the police colloquy there is no reference to a jet all that there would have been no factual basis for a felony well my response to that is that subsection b of the connecticut statute that we're discussing is referred to by the state of connecticut as a senate and him and so that's not something that would necessarily need to be  found before a conviction could be entered right it comes into play for sentencing purposes when do you just look at his senate well but but here the parties apparently agreed to ask for a one felony we're left to guess and that's why the petitioner did not satisfy the statutory burden of proof in this matter and there is a circuit split as to how that statutory burden of proof operates whereas here you have an  i'm probably going to understand and maybe think there's something to your argument about moncrief on the presumption all the things that give us a hint at a then we get to the categorical when we jump somewhere else but but assuming he has the burden of proof my question to is categorical he has the burden of proof with his plea transcript by itself with no reference to an age where there is no basis in that plea to assume it's anything but a misdemeanor why has he not met his burden of proof even under modified categorical approach your honor because we're still left to guess there's no discussion of the senate sing in hansard because the parties apparently agreed to ask for a specific senates there's no mention of the words misdemeanor or felony there's no mention of what the maximum senator is that uncertainty that is unsatisfying but again and i don't know connecticut law and i bet you don't know canonical law but some guy somewhere it might be important whether he's a misdemeanor or felony and i'm not sure on this record that anybody for any purpose would be able to show that he's a felon but by the same token your honor the records also leaves us unsatisfied that this was a misdemeanor and we're in the context here of someone who has conceded we're movability and undisputedly bears the burden stablish ing by preponderance that he's eligible for immigration leave and because he bears that burden of apply and i'm are really i think there might be some disagreement on the panel about but i just wanted to explore that with you it seems like to me throughout the opinion  the cord is talking about both situations where the government has the burden and you know where the immigrant has the burden and so i don't see how you exclude the ruling in mine crieff in this situation because mr meza has the burden can you elaborate on that your honor it's true that the categorical approach has a role to play regardless of who bears the burden of proof i mean in this case for example if all if all sexual assault convictions under this connecticut statute were felonies and they've therefore all had a maximum senates over a year then we would be done under the categorical approach because this categorically would not qualify under the petty offense acception and so moncrief was right that regardless of who bears the burden of proof our first resort should be to the categorical approach and it's not so much that the burden of proof doesn't exist under the categorical approach it does it's just that the result is the same under the categorical approach regardless of who bears the burden of proof because it's purely a legal inquiry right but similarly with the modified categorical approach were instructed to apply a legal presumption by the supreme court in mount crieff isn't that right well that's where the government would would disagree on that point because the modified categorical approach there is there's a factual element to that and actually that interpretation of moncrief would be inconsistent with the regulation at eight c f r section twelve forty point eight part d and that regulation specifically says where the evidence indicates that a mandatory grounds of denial may apply the applicant for immigration relief then bears the burden of proof by a preponderance of the evidence of showing that that mandatory grounds of denial does not apply to your argument as it's a fact question or it's at least a mix question of law in fact yes your honor and for that legal presumption would be a legal question right once you determine the factual predicate i believe so you know read some statistic recently about how the number of people who  represent themselves in these proceedings before the government i mean it's looks like to me mr mesa did a pretty good job of coming up with you know the evidence that he could about the that point as well and the court what the court said about that is this is not an inquiry regarding whether or not it's anybody's fault that we don't have a conclusive conviction record this is not about all this is about do the documents tell us what this conviction was and who bears the burden of proof yeah they are disputing the but i mean in this case mr mason came up with some like to me did a pretty good job but you disagree well i guess we are going to answer that because i want to elaborate on just well we disagree that it's a cognizable conviction record under sheppard i there the government is not that anybody withheld conviction documents and i think that the categorical and modified category categorical approaches as noted by several courts including recently the fifth circuit conference i think in early january i think that's correct so i mean what what should we do with that your honor it seems that you know if the supreme court certain that matter i think certainly it would make sense for the court to hold this case in advance pending the supreme court's decision as a writ has not yet been granted and we do have the weight of circuit authority on this issue saying that the party with the burden of proof bears the detriments of an inconclusive record and i think it would make sense for this court to go ahead and decide the issue before  it's important to note that lucio ryo this was not the first published decision where the tenth circuit weighed in on this matter the tenth circuit did have a previous three judge panel decision looting that the party bearing the burden of proof five circuits that have agreed with the government on this issue that's correct your honor and my question and i've forgotten what judge martin said that reminded of this but i'll remember my question would be just to hone and again on the shepard business if i am out judge martin was saying what a good job the petitioner had done his on if the petitioner had come in and had evidence with the clerk to say you know this is how we do our records this would alba cause it's a little post grew that it came out after his conviction a year later you don't know where that came from a year later it's not contemporaneous this is how we do it we have to know whether something's a misdemeanor felony we take the records of we get from the judge and whether we're right or wrong or whether we transposed or made a mistake for the purposes of connecticut this is this is it if he had had evidence like that would even though sheppard slightly different than your statute would you agree that would have been an adequate sort of document for purposes of improving his p that if if the petitioner had had a witness come in to talk about this website conviction record that he submitted to say look yes this is how we created it and here is where we get the knowledge as to whether it was a misdemeanor or felony then he could make the showing that this is comparable to a shopper document and therefore should be considered under shepherd because shepard did recognize that there are some documents out there that may not have been listed in the court's decision but may be comparable to those lists i mean this is such a weird statute you had to cut i mean i guess it's one you're one that you might have to deal with from tom tom is just a you've got this safety valve where you can only have one of it you have to  then we're back off into another approach and then you've got this statute where you know there's this demarcation between whether it's a felony or misdemeanor but apparently and on a connecticut law you don't really always have to make that clear so it's it's a odd things in one case i agree with that your honor it but i think that at the ends of the day you have a petitioner here who has conceded remove ability and we have a limited forms of immigration relief and those those forms are limited to those who can persuasively show that they meet the eligibility requirements and under shepherd the petitioner just to do that here and i think it is noteworthy too that the petitioner had an opportunity to file a discretionary waiver of the applicable ground of inadmissibility and he withdrew that application and you know when you consider what would i mean just because what would have what would have had to show to win on that application how could he that was a mistake for him to be your honor i don't know the reasons why he withdrew that application but he could have been considered for adjustments as a matter of discretion with the waiver application and he decided  not to have that opportunity let me just ask you one more thing this case is a an example and you've said several times in your argument we don't know what connecticut law is we don't know what type of documents connecticut retains in what form the government doesn't know that the court certainly doesn't know that the petitioner doesn't know that isn't the very that the very reason why the supreme court said it created the categorical in the modified categorical approach in order to that the categorical in the modified categorical approach would simplify things and eliminate many trials as to what the underlying facts of the conviction were and as it's played out over the years  opined that this approach has a lot of holes in it and it's leaving us with some unsatisfying results but at present under the supreme court law it's the approach that we're stuck with if you're correct that moncrief doesn't apply correct and moncrief does not apply i think it was noted earlier that yes there is language in moncrief about a presumption and that's immediately qualified the supreme court used the word we're making a qualification here we understand your ye honor i would just like to focus on you know we have two separate reasons why we think the court should send the case back to the  if this is a factual matter you know if where in the realm of facts the petitioner in this matter did provide ample other documents to show that the conviction was  that the attorneys representing mr mason at the hearing made several attempts to get the clerk to certify the docket were unsuccessful i'm not sure why the clerk in connecticut refused to do so i guess in theory out in the midst of those facts the fact that you know if victim was under sixteen for it to be a felony he would have had to plead to that fact at the plea colloquy i don't see any way our session in court today will reconvene tomorrow morning at nine o'clock