i will say good afternoon your honors may please the court my name is thirty cars now and i represent the petitioner lily rose in this matter your honor we have requested a split time between the abacus filer in this case was represented by mr eric mark and i would just respectfully ask for the court to two minutes of mr marks time be reserved for a vote on this matter in your honor we're here on mr rose's petition your honor we're here on mr rose's petition for review of decision from the board of immigration appeals in which the board of immigration appeals overturned an immigration judge's ruling on whether or not a violation of n j s h u c thirty five  is a aggravated felony for immigration purposes the immigration judge ruled that it was not an aggravated felony and the report of immigration appeals determined that marks a point of fact for the court mr rossa has two convictions under and j s a thirty five dash seven as the record bears out one that uses the language of deliberate dispense or possess with intent to distribute the other is whether or not the duty of harm of homeland security as representing the united states government can select any federal out analog when utilizing a generic offense to determine whether a state conviction certainly this is the statutory language says annie under the controlled substances act but petitioner rossa cements mr simmon on his behalf that it is most appropriate to use the most similar statute when we have a statute that is a mere part of the argument that the government has made in this case is that since chuang cruz the unpublished decision of this circuit precluded then in their opinion from comparing new jersey thirty five seventy two twenty one u s c eight sixty that there are freed now two to choose to utilize eight for part of their argument that they reason their brief is that this is  think that i think that there are many a judge who would agree with with your honor on that i do i think the supreme court justice kagan things the opposite view that it actually simplifies things and prevent by the way new jersey sakshi thirty five seven is it is modeled after that specific statute that what happens when you compare i'm sorry happens when you make the comparison what happens when you made the comparison is that the new jersey statute utilizes as alternative means of distribution and dispense and the federal statute does not punish dispense under age sixty three and the new jersey stat jersey statutes least culpable conduct of dispensation doesn't match the federal statute and then categorically it doesn't match and therefore a conviction under and j s a thirty five to seven is not a categorical match to twenty one what other statute we can use to charge somebody is removable from the united states but that is also a dangerous proposition from from the petitioners perspective as well because then we're in a position where the government gets to survey not just in a drug case but could do it in effect case for fraud case or statute that looks like computer fraud is now going to be a fact aggravated felony for immigration purposes and there is some danger and th believe that when we look at wilson in this court which says let's look at the most exact language again more indictive not i would say the true holding of the case and derby day it is most appropriate to go to the most the most anonymous federal analog so that individuals in prior proceedings where they're in their initial criminal prosecutions can make these immigration evaluations with some level of clarity and certainly that precedential case there's no presidential that says the government is limited in this regard if i may answer your honor are there other are there other third cherokee cases that say it is the closest analogue that you choose that that eight sixty is the closest analogical there in any in any statute it in any statute will certainly i mean this court t v holmes was presented with multiple statute and case and it's analogous most analogous to this one in that case down there was no aggravated felony for immigration purposes when when the government in that case was attempting to do almost the same thing i see that my time is right  federal school one statute which is section eight sixty eight sixty is the appropriate analysis and that is because the there is the new jersey regular distribution statu thirty five five is a mere copy of the federal distribution statute in eight forty one and why is thirty five seven more appropriate because thirty five seven is not america copy of the federal school's own statute but it is the same structure and it's just even broader it extends the types of school property that are involved it extends the type of distance from school property that's acceptable to violate it's very similar statute it's a parent if you look at the actual statutes the deplaning distribution statutes are section by substance and amounts because paragraph by paragraph if you have cocaine in this amount it's a violation of this offense if you have heroin in this amount it's a violation of the school's own statutes do not do that in fact in the new jersey school zone statute there's only one substance mentioned in one amount at all and that is marijuana and less than  one ounce which reduces the penalty it is in fact possible to vialli to enter a plea of guilty on the new jersey school zone statute without ever specifying the nature of the substance or the amount of the substance all you have to admit is that you possessed a controlled dangerous substance with the intent to dispense distribute or that substance and you would be in violation and satisfaction of all the elements of thirty five s escape cost that applies if you compare it to the in the way that the government presents this a forty then it arguably likely is a an aggravated felony but here's the reason judge that the problem with the government's approach is t case the court says that laws enacted with good intention when put to the test frequently and to the surprise of the law maker himself turn out to be mischievous absurd or otherwise objectionable but in such case the remedy lies with the law making authority not the courts that's the case that the government's approach here in the courts of expanding the categorical approach to let the government pick and choose what they want is going to lead to chaos and i have to agree with that it's going to open the door if we see any statue not just the most similar to taking further statutes and comparing them to theft offenses taking a soft and comparing them to different assaults i can think of certainly something like new jersey's computer theft crime which is actually a fraud statute but the elements may very well overlap and when you compare both those provisions eight sixteen twenty five thirty five their show the most analogous judge is without question eight sixty and the government has conceded that in the past and this comparison and if we're looking at a strict categorical is that the basic elements of the schools on offense as i described before there's no need to specify the substance or the amounts so it is not even analogous in my opinion the word just distribut stricter requirements for what constitutes a school school property there has to be three apparatus that constitute the school to become a school school yard for children where the new jersey statute you could be at the end of the parking lot on the other side of the baseball field that is in between the school and your parking lot before any of these several miles from the yes and that's where chambers came out was on the fact that the new jersey statute does not distinguish as an element that dispensing and distribution are alternative means that the jury charge includes them together and so would it would it might avoid in this unique circumstance a bizarre absurd outcome as they say by congress certainly has the ability to fix that by changing the categorical coach or by changing the statute or by  is the government trying to then persuade prosecutors to not just to prosecute illegal not to prosecute aliens under sixty which i think statue will be if the government if the government is allowed to choose let any statute other than the most similar to the state offense in question so one of you know if i may on one of the other things  aware they were now analyzing continuous physical presence and residence issues that are uniquely and specifically immigration and so they would be due that deference here we're not in that category so i just also think eligible for relief he can apply for cancellation of removal possibly something some other forms of relief as well whereas if you his if it's an aggravated felony he is the portable with no forms of early and the i g a did create him may please the court matthew george for the attorney general this case is about whether new jersey statute section two c thirty five dash seven is a hypothetical federal felony it's not about whether this case is really the kind of missions of that's true your honor it's also a matter of this particular issue wasn't presented to the chain cruise court and now the board having and now here's the board coming along in a in a presidential decision and saying there's a new analysis to apply and looking at the the i and a section eleven zero on a forty three b looking at what that refers  this particular in this particular aggravated felony yes and that's because of that because that's how congress defined it i know there's my opponent has made some reference to possible ramifications of this and  fraud or theft contacts with congress to find those aggravated felonies differently it didn't necessarily make this a specific statutory reference to section one twenty four see where congress again define very broadly what would a drug trafficking felony is and so i suppose it's possible this this approach made it bleed over if that's something that comes before the board and the board decides to applied in that context but what the board has done here is limited to the drug trafficking aggravated felony context and all it's saying is we can look to any controlled substances act felony and if we look at the new jersey statute here section seven it  is a drug trafficking aggravated felony under twenty one u s c a forty one a one and so all that's really being added in new jersey to see thirty five seven is that proximity factor to the school facility  so you really want to encourage prosecutors to pursue any permanent residence under not under the schoolyard stack you get to selling drugs in your school years equivalent i mean whatever the numbers are the end in salmon right it wouldn't matter too for immigration purposes because both of them are hypothetical federal government for for the for the community safety purposes wouldn't you shouldn't they be prosecuted under the statute that recognizes they're selling drugs in your schoolyard and that they should have a heavier more severe penalty imposed on them if that's what the state prosecutors believe absolutely the state prosecutors should look at immigration consequences in prosecuting crimes they should do whatever their incentives are their goals and obligations are under state laws and select the appropriate crime and secure the conviction as they see fit it's then it then comes to whether the crime of conviction the secular conviction is a hypothetical federal felony it's not whether now say a federal prosecutor secure a crime or a conviction under the same type of statute it's whether whether a federal hypothetical prosecutor could so secure a hypothetical conviction under any controlled substances act statute and here a hypothetical federal prosecutor could do that because all the conduct in the new jersey subsection seven would violate twenty one u s c eight you would be bound in the third circuit to recognize that in not trying to pick out another and now in this statute would you not i believe that's correct your honor however i don't don't concede if sixty is the most  broke if eight sixty is the one i would say we i don't know how we get around change crews and that and then if and if we were to say that would you would you agree that to see thirty five seven is broader than s are yes i don't think anything in terms of the analysis has changed since change groups in terms of the whether those are elements or means and them and there's also some issues with the the school property school buses all that all that kind of stuff is going to cause a whole bunch of problems and probably is not going to be much of however that the government limited or the immigration laws to limit us to age sixty we can look at forty one in this case because it's broader and does not require that school proximity factor otherwise all of the conduct lines up exactly with a forty one making see thirty five seven a hypothetical federal felony under a forty one a one and that's a problem it is drug that's that's why we're here because it is our right and and again nothing prevents them prevents the the board from from doing this analysis as as the other side is pointing out there's no prohibitions on doing this in fact the supreme court this court the statute however you want to look at it all support this analysis again it congress provided for very broad selection by using the word any by referring in the immigration nationality act to section one hundred horsey really isn't any pretty ambiguous the word conduct and looking at the conduct of particularly in this case given that there's a missing piece of conduct the dispense element or means or whatever it is that's present in the new jersey statute it's not present in a sixty that is present in a forty one forty one is actually the statute that has the most identical conduct a forty one this is a schoolyard element and that is what think we need to recognize that that purpose of congress in acting eight sixteen in the first place and if that messes up a few deportations i think that's a minor matter in comparison to endangering children by having drug sales closer to schools i think your honor is actually making the argument the wrong way this is saying when these states new jersey here in particular convict someone for this crime that is in proximity to a school we're saying now that's not an aggravated felony this person should get to stay in the united states whereas if he had done it more than a thousand feet from the school he would be removable and he'd be going back well the decision on where whether he's should deserve to stay in the united states then goes beyond that conviction and into how he has comported himself since then and it's not someone who has continued in drug sales who will be permitted to stay it's someone who's turned his life around and lead a different life and isn't that a consideration that's important to make and the cancelation complex yes that's in the discretion of the immigration look right but that's not what we're looking at here here we're looking at does the state statute have an analogous controlled substances act felony here does because all of the conduct under new jersey to see thirty five seven would violate twenty one u s c a forty one a one and a conviction under a forty one a one would not require that school activity factor it's not a comment about the severity of the conduct or whether they should be punished or is deserving of more punishment or whether congress is judgment in an act that says it's a conclusion that you're coming to simply can make the drug crime have the school proximity factor so to analyze i'm not sure how that would come to come to play out or whatever that that's what the immigration judge in this case really got tripped up on what kind of was intended to be the absurdity notion is a sort of a canon of statutory interpretation which the board was applying here or really more and it's application to this particular statute saying look if if we have to select what i guess the petition are saying is the most analogous to actually if we have to look for section eight sixty it's not going to be an aggravated felony and that means someone who does this otherwise aggravated felony conduct in proximity proximity to a school is not going to be an aggravated felony are for you don't have a thousand or one feet away and the state a convicted him under the sort of lesser included crime which this court has said doesn't match up exactly then he would be an aggravated power and that's absurd to say that when he does this in a more sensitive area that we see how good it's not necessarily because in order to determine whether there's a cancellation of the point ation you're still going to look to see what the guy's been doing you aren't going to you aren't going to grant the discretion to let him stay in his conduct since that conviction has been a threat to the community by but that's the stuff we get to where after this analysis right but that's a whole different in making the analysis when you're saying it's absurd i can look at the next step and saying it's not as absurd as you're trying to make  aggravated felons who could stay in this country who have shown that they they are we have billeted who are shown that they can be good citizens maybe if you know the fact that every designation of aggravated fel i'm saying looking at the whole situation maybe it's not so ridiculous where left to get us lesser maybe so but again that's looking at the discretionary determination that happens now after considering what they've done in the past what they're doing in the present in terms of deciding hands close never will this question of yes your honor however in this context we're not looking at any conduct we're simply looking at structure toward language that's well  your cries of ridiculous outcome is not so ridiculous but the board did not in any way address the discretionary portion of it it simply disagreed with big all of the conduct him and the new jersey statute here satisfies a federal controlled substances act felony that felony is section eight forty one because congress said that's all that's necessary that it satisfies any the government contend that all violations of new jersey schools on thirty five seven are violations of federal it forty one that time is wrong they are not for the reasons i stated before that i savvy defense counsel can advise a client defendant to enter a plea to violate school and statute in new jersey without mentioning the substance or the amount of the controlled substance such a party which is accepted in the court is not a violation of a forty one because it does not specify the necessary elements of the substance and the amounts to violate a forty one the way that a forty one is laid out so that premise because of this off undercuts the entire government argument that all violations of thirty five seven are categorically a match to forty one they are not would any i i agree which i draw off that the word is unclear in the sense that any means you can off site for which is that you can look for any statute within the c s a to find the most similar one to the state violation but when you find the most similar one that it doesn't suit your bidding you can't go looking for another one that does it's not it's not an open door to find whatever suits the government's target the best they could the supreme court addressed that same concern in in moncrief and de camp when they when the court said that just because it's not an aggravated felony the issue is not over they're still deportable they still have drug convictions they're still going to be in immigration court and the government still going to present its case for why they should not be granted any relief from  the issue is not over without announcing so it's not necessary because the government is still going to be bringing these people with drug convictions into room immigration proceedings and the burden will be on the respondents to establish that they deserve some relief as opposed to the government's desired outcome which is that there's absolutely no option for relief regardless of what you have done since your conviction say thank you thank you