grounds for reviewing vacated can use this court as acknowledged in pain you know that there could be grounds outside of those four acknowledged under immigration law and so we have to be can i just ask you to stop and think i just could you begin by pointing me a little bit to where specifically one of the the i and a the exception or perhaps better stated standard that you're looking for mr cobb benefit from a ars i cannot judge there is nothing in the i am about how to deal with vacated convictions all of the case all of the law in vacating convictions comes from case law it's circuit law or b i a decisions using the word commission without referring to the commission is the date of the offense which is different than obviously the date of conviction but to say that we were going to stop time whenever there's a commission of a potential not didn't we already cross that bridge and no where we were addressing the call statute and the term commissionaire and we looked at the conduct and applied a standard of probable cause i as to within immigration law to say that an allegation that somebody possessed marijuana or an allegation that someone shoplift or any other event that didn't lead to a conviction would be enough to stop time would lead to da just presenting all kinds of evidence in these removal hearings and having not even many conviction at admission to having committed the act for admission having committed the essential elements of the of the act so it's not quite a standard place i think is as you're suggesting and so how is it that doubt even though something was committed they had to conduct was committed we would still say that it shouldn't be counted because it was a defect in the underlying conviction you not agree that that's the case that even though there was something committed if later on it was determined that that was it was defective proceedings that it wouldn't stop the person stop time will but here you have a situation where you know you're not even alleging that there was a defect you are urging that the courts determine the reasons for the vacate or you say that in your brief but don't you have a burden to show us that the underlying proceedings were as well that if there is no conviction then the date of the commission can't exist there has to be a conviction to trigger the stop time rule and the date of commission is what the actual minutes the date that the time stops as far as the conviction itself judge could that there be in your petition you rely upon the statutory provision that's allows for the destruction of the record i don't offer any other basis for they catered to you and were in pinho we said you look at the order will the order doesn't say anything here and then we look at the record and record is your petition how have you a verdict anything that would give rise to a basis for saying that there was a defect well judge i think that the decriminalization in of itself is considered substantive and i would point the court to united states supreme court precedent in it not in this issue but on where the supreme court is reviewed collateral attacks on criminal convictions to have these proceedings for instance in at the beginning which is that decriminalization whether it's by legislature or by court decision doesn't fit squarely into procedural or substantive as as immigration case  has defined then what was this what was this conduct a crime at the time it was committed it was a crime at the time it was committed under connecticut law but connecticut has now said that we don't think it should have been a crime at that point and that jack that time what is the defect what it is in terms of the historical fact of the conviction what is the defect in that the defect is the law that the connecticut legislature said this was a bad law it should not have been criminal much like much like the supreme court has vacated sodomy as a criminal act but that's a that's unconstitutional there was a declaration of constitutionality that is the same as for instance ineffective assistance of counsel to say that something was unconstitutional undermines the entire proceeding from a substantive standpoint there's been no allegation that this this marijuana crime you know is somehow unconstitutional you you can't you can't draw those two together there are apples and oranges so we get back to judge krauss's question was d there procedural are substantive the fact and it would seem to me it's up to you to convince us that that there was something basically wrong with a conviction at the time at the time of the conviction judge that raises two points one is where does the burden of proof lie and i was point the court towards the th circuit in pickering to gonzalez which is d p a far the saying that once the once the v h s has proven that there is a conviction the burden shifts to the respondent to establish that the conviction was vacated once the respondent establishe that the conviction was vacated the burden shifts back to the government to show that it was for a rehabilitative purpose and so that in this situation the burden shifting is important because at this point the b l u and in your hono question is placing the burden on the respondent where the six circuit and i would assert correctly has put the burden on the government to say that this was an rehabilitat for rehabilitated or immigration hardship so that the the comparatives are was it defective or was it a post conviction event and here it's pretty easy for the government to point to the statute and say such as immigration hardship rehabilitation or a change in state puddle see that's the same type of post conviction event so i don't think the burden is all d that that heavy to show rehabilitative that's that's not what pickering said with judge i think that pickering put the burden on the respondent and by doing so it has shifted it wrongly because if we look at it but they have shown the government here has shown that there was a post conviction event and that was the change connecticut's changing its policy well judge date there is a change in the policy but the petition if we're looking at the peano allowable documents which are  immigration based outside of of substantive grounds they cannot do that because there's nothing in the record nothing in the allowable record that allows that to happen well you tell me where in pickering it says that the only other possibility other than defective is rehabilitation or immigration hardship it doesn't judge it now it doesn't become you just toss out riposte conviction events such as rehabilitation or immigration or they could accept or connecticut change in policy state change in policy could say no no i don't think they could because i think that the change that decriminalization is different than a change in policy decriminalization is substantive it is the most substantive change that can exist it is taking something that was not that was criminal and making it non criminal for instance distinction and the decriminalization and as i point out in the u s supreme court has pointed out in the heaviest line of cases decriminalization is substantive but also isn't going going back to that the text of the statute if we're looking at the  legislature choose to do that which was previously did it to previously did and then corrected its error by saying this is not behavior that we think is criminal in or ever should have been criminal and therefore it is decriminalize a both parties have addressed this issue as with the assumption that pino in pickering are are applicable  e in closing criminal i thanked him but why should we just assume that pickering applies when the language here is about commission of an offense not about conviction p well your honor i think either way if it's if you go by the commission of the crime or if you go by the conviction if you look at either way but the petition is still an eligible for cancellation of removal but would you not agree that if there was a defect in the underlying proceedings here that it wouldn't count for purposes of the stop time renounce the stop time rule says it would be as of that date that the scots running the commission relates to the trying when the stopped when the stock comes the period ends at the commission but the other the other shoe has to drop the conviction has to have been i mean there has to have been a conviction that results from it and the conviction has to have been substantively valid isn't that isn't that correct well been convicted and in this case he's he's the petitioner has never argued that he never committed the act he agreed that he was convicted and now he's arguing that the conviction is no longer valid so he has admitted that he committed those acts of possessing marijuana and at the time as you say at the time of the km commission of offense he was rendered ineligible for cancellation of removal and in this case where there is no substantive defect in the underlying criminal proceeding as of the date of the commission but if there had been an underlying defect in in the convictions here let's say he did not have counsel then we would say regardless of the fact that he might have committed  acts that render him in unmissable did he raise that because he admitted it that the question of the conviction is is irrelevant no that was not in our our greek your honor so we we will go forward with  decision they did say that he was convicted and based on that conviction he is not eligible for cancellation of removal and that that reasoning is is correct your honor it was  action in this case the connecticut legislature determined as a policy basis to decriminalize it but there is no no suggestion that a conviction based on possessing marijuana is constitutional no yeah i'm sorry to interrupt if i could just ask a question on that point is it the government's position that mr kahn is no longer convicted of the offense under connecticut law because as i read the connecticut statute it did two things st the prospective really changed the criminal penalties three civil penalty and it also allows for individuals who had previously been convicted of this offense criminally to petition for destruction of their records do either of those things remove the criminal conviction that mr khan was subjected to at the time of his conviction well for the immigration purposes trying to discern whether that was your question but it sounds that you're not asking about whether there was a difference between the destruction of a record and a vacuum or i was confused about your question petition and the record that he submitted to the a court did not show that there was any underlying defect in his criminal proceeding what about your you you have to show rehabilitative purpose here that you have a burden to show rehabilitative purpose and you failed to do  that it was not the government's burden to show rehabilitation here it was the petitioners burden to show that he is eligible for relief by showing whether there was any substantive or procedural defect and criminal proceeding and he failed to do that here well in this case that there's been no showing that the legislature determined that the offense should never have been criminal it seems that over time the views of changed and so based on that they're now saying that this person does not deserve a criminal record and associate a penalty based on the facts but this and the statute could have been no your honor i believe that in a sense allowing someone to write their record of this conviction is rehabilitative in nature by allowing that person to go but there was never any any proof in this case that the connecticut legislature determined that the crime was was unconstitutional or that there was any sort of the mentioned the constitution but when you actually look at the language of why they wanted to put the record destroyed they relied on this decriminalization  policy in connecticut so the argument was actually based on just the fact that connecticut decriminalized that offense but there was no real substantive constitutional argument they just threw it in the petition at the beginning and provided no no argument about whether whether the statute was unconstitutional or not council will also allow you to exceed your time conviction judge it was the police would be the admission but without the conviction to plead goes away because he's still not in unmissable it might be something that could be considered as to discretion and whether the admission admission of criminal conduct a line will not make him an eligible there needs to have been a conviction correct or not is correct judge because i  the thing that becomes convictions after conviction the question becomes when does the stop time rule apply and that is the date of commission commission yes that was the st point the other point i want to just judge is the questions regarding whether connecticut has referenced the constitutionality of the marijuana possession and i would assert that's the wrong question there's nothing in in pick change not constitutional change that very clearly means that changes that don't rise to the level of constitutional change but that are still substantive are sufficient to vacate a conviction if it did we didn't say believes that that behavior should not be criminal and that he was convicted for an act that is not subject should not be subject to criminal but don't we need to look at the criminal proceeding defective because human behavior that dragged him into court should not have been criminally enforced and should not have been criminal and if we operate from that perspective then that is the substantive filament of that then later vacating which is a change in state law as to the nature of the conviction that that that really is the subs a substantive defect in the proceeding i don't see that reasoning anywhere judge i think that your honor made a leap from a decriminalization by a state legislature that does in the legislation make it retroactive thereby stating that this this retroactivity implicated here well the retroactivity is the the allowing the destruction of the records the vacating of the conviction the destruction of the records for anybody who has been convicted of th violation of probation at the time that he petitioned to expect to vacate his records and he raced them and the court said that because it was decriminalized it's also a victory or a sure his actual behavior whether or not he completed his sentence whether or not he had done any rehabilitation is a relevant he was actively in a violation of probation at the time and the court said well this is no longer criminal and so your previous offenses are erased that changed judged and again i direct the court through the language in the line of cases regarding retroactivity he is cases where a court or legislature changes the conduct or the class of person to which the law appl that is a substantive change those are the words in that line of cases in a different context but it is the same language that we're referring to here we're talking about changes in law and and and whether or not that is substantive there's no reason to distinguish so if a change is substantive under under c b s law in retroactivity it is substantive also under the under immigration law and and caters counsel just a quick question on that point congress could have said what you're arguing in the i am a right and and it had said similar things elsewhere in one two thousand one hundred and twenty dollars for instance which was added at the same time that the definition of conviction was added to the guy in a congress carved out a whole series of acts that would render a conviction invalid for purposes of the  he'd know how to do what it is that you're asking for it has not done so here isn't that pretty strong evidence that we shouldn't be removing a whole bunch of new meaning into the limited language that no judge because we can't because there was no provision in the ion a for what to do with the vacated exploit and conviction it and the fact that those mended of the courts the immigration courts and the federal courts to address the issue and create a body of law that guides us here it would have been ideal had congress put in provisions for each and every way that a conviction could make it it but in the absence of that it fell upon the courts the board of immigration appeals and the circuit courts to to parse those issues out so i agree with your honor that we're in a situation presented to us by congress but that their failure to define these issues doesn't prevent this court from acting on it it actually requires this to act on it because there is no alternative we can't just conclusion as to the commission of an offense based on conduct without a conviction if there was probable cause on the record to establish that the excuse me we're committed what distinguishes  somebody outside the united states seeking to enter under the terms of part of that mission that we have that's very different than this situation for a permanent resident who is in the united states and has his has all of the rights that come with that in other words we're not dealing here with parole is discretionary parole is discretionary it is up to d h asked at the border to determine whether they should admit someone or not and the grounds for granting that are wide latitude they could deny entry for any various number of reasons that have nothing to do with convictions or drugs or anything here we have a very limited circumstance a permanent resident who was entitled to due process a permanent resident who but because he is a permanent resident the burden is on the government to establish is remove ability and so we're doing two very different