to show that he has not been convicted of a disqualifying offense the main question here is just whether he can rely on the categorical approach is the least x presumption to meet that burden of proof just as parties may rely on presumptions to satisfy their burdens of proof in many other areas he can for two reasons st for decades the statutory term convicted has been understood to require a categorical approach under which a past offen won't lead to mandatory removal or an enhanced sentence unless the record of conviction establishes every element of a federal predicate offense to a legal certainty so we always presume that a conviction stands for nothing more than the least that the record of conviction establishes and that rule works the same under the categorical and modified categorical approaches because courts can look to the least of the alternative elements under a divisible statute as this court has doc and congress didn't disturb that rule when it hadn't acted as a general burden of proof provision that says nothing about conviction and that's not surprising because all we're talking about is a gatekeeping step there is still the discretionary step where the attorney general is unbound by the categorical approach and can make an individualized determination about who gets relief so ultimately it doesn't matter whether you think of the modified categorical approach as raising the question of law or a question of fact because it's common for presumptions to operate on questions of fact too and what matters is instead that the least x presumption always governs the analysis and because it supplies a default  answer there is never any residual ambiguity for a burden of proof to resolve counsel i think your friend on the other side might agree that it doesn't matter so much whether it's aca the government has the burden of showing that the increased sentence is warranted so it has to carry the burden of looking to the least elements approach but it's different when you're seeking the benefit of removal under the immigration case and there the person who's seeking has the burden of that benefit is your client and therefore you have the burden of showing the most elements approach for the prior conviction why isn't it simply the different burdens under aca and the immigration statute that account for the fact that in one case the different burden of going forward whether you're seeking a greater sentence or seeking a benefit of removal why doesn't that simply account for the allocation of the burden of proof and it's government is not actually arguing that least x presumption and the burden of proof are opposite ends of a single spectrum because the government acknowledges that even where the non citizen bears the burden of proof the least x presumption still doesn't apply at least at the categorical step of the analysis so those two aren't inversely related in the way that your honor's question suggests but also  even in contexts where the government has borne the burden of proof that has not been what has animated the decision under the categorical approach and in fact the standard that the court has adopted which is this demand for certainty or i think  requirement that the conviction necessarily establish every element goes far beyond the burden of proof that the government would face at that and saying or to show remove ability thank you counsel justice the where you're applying it to establishing the crime of conviction isn't there a difference i don't think there's any difference there i think sheppard is a good example of that as is johnson did you know there seemed to be an underlying current of the somewhat unfair to as the petitioner here to say what he had just been convicted of in the state courts could you explain why you think that would be unfair to say in those of that if i were just convicted of a crime i would know what it was so short twenty two responses to that justice thomas st is that this is in some ways the unusual case that in a devolves parallel criminal and immigration proceedings oftentimes these convictions are vote years after the fact and just as one example of that this court right now is holding a case for this one ultimately isn't going to have ability to control what is recorded or preserved by the state court that might be processing twenty misdemeanor pleas in the course of a single day and that criminal defense lawyers brief and details of length why this often unclear could you explain once more why i understand why in the criminal cases this would be the government's burden because of the you know beyond the reasonable doubt but this is civil context why is it that the this is not the petitioners burden so i our argument is that the operation of a categorical approach is not affected by the burden of substantive component of the categorical approach because of its underlying demand for certainty and ensuring that there is going to be predictability and fairness so that people aren't losing the benefit of their plea bargains based on the fo if i say that your client was convicted of violating a breast a revised statutes section twenty eight dash six hundred and eight is that a factual isn't that a factual question that i think you could call that a factual question but that wouldn't change our analysis because again we think the least x presumption applies even to questions of fact all right so let me give you a very simple way of looking at this case and you can tell me why this is wrong whether or not a person was convicted of a particular crime is a question of fact there's nothing that prevents if that fact has to be proven there's nothing that prevents congress in a civil case like this from saying the burden of proof on that fact is on one party or the other party and here is place that on the person seeking cancellation of removal is there any obstacle constitutional obstacle to congress doing that no there's not a constitutional obstacle which if that's not what congress did here congress enacted a general orden of proof provision without doing anything to alter the reference to convictions as the actual eligibility criteria  id act that congress was focused on what you would think of as questions a fact that it would be proven with weighing evidence and making credibility determinations and taking testimony and the like that's the entire focus they are called categorical because they are making a categorical determination to take the example of burglary which is been central to our cases in this area so you know somebody who's convicted of burglary under let's say california law and the question is whether that is a conviction or an error or lowering it is a it is determination about an entire category of cases that is all of the cases prosecuted and convicted under the california or glorie statute and it is in that situation where the court asks looks to the least of the acts criminal is the least thing that could get somebody convicted of burglary in california with that because it's a generic burglary if the answer to that is no and it flunks under the categorical test but what's involved here is not six categorical at all it is the determination of a question of fact was your client and vick did under subsection c or was he not convicted under subsection six so i agree with everything that you said justice alito except that is not the only thing that the categorical approach does and i'll try to make this very brief but st shefford shows that the demand for certainty also applies to the which statutory prong question because the deplane of that case was that we were going to demand certainty and only look to legally conclusive records to determine what which part of the divisible statute it was and all of that makes sense because whether as the chief justice pointed out  shepard and johnson the case that you rely on very heavily were criminal prosecutions where the prosecution under the constitution has the burden of proving beyond a reasonable doubt that the person was convicted of a particular offens demand for a necessity for a one hundred and sixty years including in contexts involving divisible statutes like this off or on no case we cite from the nd circuit and the immigration professor is cite the matter of march aina case from the b i and sixty seven and involving a context in which the non citizen or the burden of proof i think all of that tends to show that the demand for certainty is not a function of the burden of proof the demand for certainty is part of the categorical approaches requirement that we are not going to treat your offense as a prank you counsel justice sotomayor mr goldman i had two different sets of questions let me start with the is assuming we were to disagree with you today and rule against you would we have any reason to vacate are there any other arguments you could make that your client to wasn't in fact convicted of the cia see for example i read the th circuit is saying that a sentence of one year or longer fits the sentenc requirement of not being more than one year did you challenge that below that that's wrong and secondly i see the statute here has  requiring harm but not necessarily financial harm and not necessarily deception harm could be emotional harm or even physical harm and that wouldn't fit in a c i m t had those rejected those arguments so i wish i could say that that we're still open but i believe that is now closed nd with respect to the harm required i think the the circuits and alice has held that and twenty nine a c three b in any proceeding under this checked or any of the following documents or records shall constitute proof of a criminal conviction and official record of judgment a conviction which was provided here an official record of plea verdict and sentence not provided because it wasn't available in nobody challenges that it was a pale blue and see a docket entry from court records that in this indicates the existence of the conviction that was provided doesn't that answer the question of whether you've met your burden of proof i you shown them what you were convicted of and the lowest there is one c i mt that doesn't apply and hence under our case for johnson and others that ambiguity flosi your favor what a medically yes that is our position just a sort of my or that said where are the record this is a conviction under an overbroad statute so we presume it is not disqualifying  and unless the record of conviction necessarily establishes otherwise and here it does not and all of the record of conviction has been supplied so far as we know that's correct so if the government there is there is it i would just note that here it's the government who produced the criminal record as it does in all of these cases as part of its criminal history check thank you couns goldman i understand that you think it doesn't matter whether the question here is an eagle or factual that you win either way on the other hand a lot of the questions that you've been getting would disappear if it were legal because even the government concedes i believe that questions of the law are not affected by the burgen the truth so i'm just going to ask you whether you add have an argument that this is a legal question yes and i think that is the better way to look at it i just because as i've said it doesn't ultimately matter where you want to hide it it's the better way because you've been talking for a while and you haven't told anybody why it's the better way to look at it to say that it's legal guys are so that the idea is that the categorical approach the entirety of the approach is always asking does a conviction necessarily establish every element of the federal offense and the modified categorical approach can help you we asked her that question yes if it narrows the offense by revealing a statutory alternative because then you are essentially looking at the record of conviction as a stand in for the statutory text itself much as the court's opinion in math describes so that the point is that the only reason we are looking to records is for the same reason you look to the text which is as part of a legal analysis about the meaning of the conviction and the elements it involved well i think what the government would say is that although the entire inquiry might be a needle one there's a part of the inquiry which simply involves ask it what crime were you convicted of and that's a factual one even though you then go on to be easy even though you then go on to the more legal inquiry and even though you decide that question through the use of entirely legal documents i think that that's what the government would say so what's the answer to that the answer there is that the only reason you are looking at documents at all to ask which prime is still in service of the bottom line legal question and so if  if asking that when that question about which prong of the statute it was turns up empty as it did in johnson then that doesn't that's not a failure of proof that doesn't mean that the analysis can never reach the legal inquiry which is the government's argument instead the vote categorical approach supplies its own rule for resolving that ambiguity which is to look to the least of the alternative elements and make the categorical comparison from the a very different question if you win let it be permissible for the attorney general to say something like that was a pretty bad crime and because it was a pretty bad crime i won't use my discretion to cancel your removal and in other words could the government basically and that the rule that it is arguing for on the back end of the process so i think as a matter of the i and a it certainly could be i and it in no way limits the attorney general's discretion and what you've described happens all the time where the i j or the b i a will say i don't need to undertake the categorical analysis and go through the complicated determination of if this is disqualifying or not because i just know that you are losing as a matter of discretion and because of the severity of what it seems that you did if if the attorney general were tried to try to do that as a regulation maybe there would be a p a challenges to that but i don't think the i had a provides any obstacle question about what happened in particular time in place we're not interpreting any law or any neutral principle and in generally applicable provision i don't see how johnson helps because the burden is there was on the government in a criminal case is the burden is on proving that the government has filed proving the portability totally different than subsection four which is applications for relief from removal of portability which then fall on the immigrant so that and that's putting my cards on the table is what i'm stuck on what i what i'm hopeful of for one explore a little bit is shepard and why you concede that or i don't know maybe you don't that there is that this is all categorical approach  would have thought the mr parade of might have argued of forget about the categorical approach i can i can show on the facts here and my testimony might establish that i wasn't using the social security card to pain benefits or to defraud anybody of anything but simply to get a job and therefore it wasn't a crime of moral turpitude what about that argument should we remand for that has that been preserved thoughts sorry i'll  immigration court system to start inviting that type of mini trial even when it's done for beneficial purposes as your honor is describing and i don't think that's any different than when the nd circuit addressed exactly that question in the and fourteen which was the genesis of all of this and saying if we allow the immigration officer to go behind the fact of the conviction and analyze the facts of the offense why you would even be allowing the non citizen to try to prove that even though he was nominally convicted of something what he actually did was less bad and i think it undermines all of the benefits around predictability and efficiency of this approach and instead and again all that we're talking about here is a gatekeeping status so i think the more sensible solution is to say that if a conviction does not clearly qualify as a predicate offense then you can get to  is either some people who should not be eligible for cancellation of removal will remain in the country or some people who should be at least eligible for cancellation of removal will be removed from the country and i might choose a different in place for an individual to be able to invoke a presumption to satisfy a burden of proof we give the examples in our brief fields goods presumption copyright validity and i think most importantly is the asylum presumption we note at page thirty one of our little brief where the real id act added a virtually identical burden of proof provision for asylum claims but that didn't in any way a limb in a an asylum applicants ability to rely on the presumption that he has a well founded fear of future persecution that had been a longstanding presumption as well so i think there is just no tension between a presumption that favors someone and a statutory burden of proof that is placed on and that person and what do you do with the fact that we're not talking about the removal itself technically but we're talking about cancellation of removal in other words you've already non citizens already been deemed usually or at the same time deemed removable and we're talking about something that would cancel that removable in that circumstance it does seem more logical i suppose or would you least one could understand why congress made the choice in that circumstance to put the burden on the non citizen because of the cancellation of removal context so is the context the matter there or why doesn't it matter so the context matters for most parts of a cancellation application and mr parade of put on hundreds of pages of evidence showing why he deserved cancellation of removal but with respect to this inquiry which is governed by a presumption that the burden doesn't ultimately affect that either way because there is never a leftover ambiguity that our burden of proof is going to solve it just  conviction does or doesn't necessarily establish every element of the federal offense and i think again because this is ultimately discretionary relief that makes perfect sense that we're just saying can you get past eight you can step to the point at which the i j a can actually consider the underlying facts of your criminal offense which is a much more sensible place to resolve that that's a fair point thank you mr golden a minute to wrap up mr goldman deserving of cancellation or asylum but if details conviction records were never prepared or were destroyed long ago he would be subject to mandatory removal there would be absolutely nothing that he or the attorney general could do and the government just hasn't explained why congress would have thought that it was mandating that drastically over inclusive result simply by writing a burden of proof provision that says nothing about convictions but instead talks about fact finding tools like testimony and corroboration that have long been irrelevant to the analysis of conviction the better answer is that that's not what congress did thank you thank you counsel mr bond please the court the statutory text places on an alien seeking relief from removal the burden of proof to establish that he satisfies the applicable that eligibility requirement that text answers the question presented as petitioner acknowledges in his reply and again this morning is burden includes showing that he does not have a disqualifying conviction fisher has not carried that burden so he isn't eligible for a cancellation petition or pleaded guilty to violating a statute that covers multiple of which are disqualifying if that's was his burden to show he was convicted of a non just qualifying crime under that statute but even though this immigration proceeding was already ongoing before he pleaded guilty and his immigration attorney knew of the potential consequences of a conviction petitioner did not commit anything to show the particular offense of which he was convicted his position is that the courts categorical approach precedent excuse to failure of proof and required resolving ambiguity in the record in his favor that is incorrect under that precedent once the elements of the offense had been identified then ask what i believe least act satisfy them but this case concerns that's kind of lurking in the background throughout this case and it's certainly affected by the question of what kind of determination is it legal or factual is the limitation to the so called sheppard documents you're here from the department of justice so you should know as well as anybody what the experience of the department has been around the country with that limitation is it often the case that those documents are how often are those documents not available does it vary from one part of the country to the other do you have situations where people are coming forward with documents that seem pretty provocative on the question but they're excluded because they're not shepherd documents what can you tell me about that we don't have data that granular level that tracks why a party is not being eligible for example ation we simply don't have aggregate data that that point to that specific thing however i would suggest there's no reason to expect that an alien who has a criminal conviction particularly like one in this case was convicted after his immigration proceeding was ongoing would not know his criminal history and he or his attorney would not be  able not at least know what documents to look for and where to find them i don't really can you know what documents to look for but the reality as i understand it is that often you don't have these things are often papered because you've got a lot of you know a busy busy criminal dockets and plea bargains and other things like that so the fact that the lawyer knows what to look for isn't enough and even if the lawyer finds of something probative that's not going to be admissible on the on the question well if it's a separate document it would be admissible and i think that kind of i talking about i'm talking about a situation where it's outside of shepherd sure and w respect to the limitation to shepard document as as you know in jeopardy we argued for a broader cast and in the lower courts we have argued under this particular provision for a broader array of evidentiary materials that's not at issue here both because the board rested on sheppard and because all the incentive in the world and the ability to memorialize that agreement in a written document that meant that reflect that agreement with the prosecutor in the context where the alien doesn't personally have those records and tries to reasonable diligence to obtain them the right they don't seem just and it doesn't seem to see much difference between the way we would treat this case and the way we were treated in the criminal context and what your reaction to that i think they are very different because of the judgment congress made when it expressively place the burden of proof on the alien to prove eligibility that's what at this case apart from all of the cases petitioners cite in  bears the burden of proof just didn't carry it by presenting any document to show which particular version of criminal impersonation he pleaded guilty to committing just a matter of curiosity how much discretion do you have if you think for example that a petition or for an applicant is being evasive do you does the attorney general have the discretion to  simply dismiss or deny his request for cancellation yes i j could do that on a case by case basis and yes this is in response to some of the earlier question if the attorney general can adopt a regulation that does that categorically but i think that's not the right approach for the right lens to approach this issue for two reasons st as this court has explained for a very long time congress intended these eligibility requirements under the predecessor statute for governing suspension of applicant is demonstrably ineligible and hasn't carried his burden is a sin to be dealt with a motion to credit stage and no one needs to spend time and resources litigating the merits of whether discretion is appropriate but if this is dealt with by the i j a at the discretionary phase the parties then yonder lying merits and you lose all of the efficiency of resolving that at the threshold where congress intended it to be decided thank you justice briar well there is a virtue in simplicity in the law some are not federal burglary and which ones was this was he convicted of the folk burglary or house here's what it says to do you look at the statute that doesn't help there all three then you look at the indictment or information and then you look at the jury instruction now if those three things the statute the jury instructions and the and the indictment are information documents do the same thing as the statute for business of course enough the statute that you're talking about has four words in it and those words say that if the evidence indicates one or more of the grounds for mandatory denial of relief apply then the government wins so we look at the list of documents we see if they do and that's the end of the case if they don't necessarily show that then you carry his burden of proof whether they show that or not is a question of law now why isn't that the end of this case the points are honored st i agree with the motive inquiry that you were describing that taylor taylor describes looking to what we now call a separate document with one friendly amendment that approach under that approach the party with the burden of proof under the statute loses when they don't may apply the alien must show that it does not apply by a preponderance so in this case when the alien puts in his description of his criminal record and if it clear that he may have a disqualifying conviction the regulation is clear this event bears the burden of showing that it does not apply now to the shepherd framework is perfectly compatible with that you simply need to use separate documents to make that showing but that he did then you know he didn't show you that's my basic point he did show then you satisfy the applicable eligibility requirements because the applicable eligibility requirement is that the set of legal documents in front of the judge does not necessarily show that it was a crime of burden of proof in fact or in the production burden of persuasion or both it is both it is the burden of proof that this court ordinarily understands the meaning of burden of persuasion but we think it here subsumes the burden of necessarily didn't require will the government have been required to provide certain documents relating to conviction anyway if a conviction is the basis for the determination of a movability then i guess the answer to that is yes i suppose that's not always that's right it is not always the case that is not the case here the government did not become movability based on a prior conviction it was simply because at position or conceded he was in the country without convictions and a high level of generality it does not provide the kind of granular information about which prong of a visible statute the alien was convicted under and it certainly does not result in a complete set of separate documents with which the government could demonstrate which version of the offense the alien was convicted of committing you know what governs think why do you think that the sheppard limitations would apply in this situation it's one thing for us to say in a criminal case where the government the prosecution has the burden of proving prior convictions beyond a reasonable doubt that we're going to put a limit on the proof that the government can rely on to try to discharge that burden  whether or not that's that was a good idea that's what was done but it's something else again to say that where the alien who is seeking cancellation of removal is the one who will be disadvantaged by the failure of proof that person is limited and by shepard in the documents that can be relied on to discharge that burden i don't know what does that make sense why is that fair and where would we get the authority to impose that limitation on of the government has argued in in the past in lower courts including in the young case cited in fishnets reply brief that in this context those limitations for not apply and that the agency should have the ability to consider a broader array of documents now we haven't made that argument in this particular case for two reasons as i was mentioning earlier st the board's decision shepherd is given and we're defending the agency's action on the rationale that it gave and nd this isn't a case where any issue of non shephard document among at least is the case that this court no one is arguing that a non shepherd document was presented but not considered or vice versa so i think the issue is an important one to leave open for the future but it's not require the alien to put forth those documents in his or her possession the legal question is do those documents show that he's been committed he has committed a cia and t you're asking the opposite question to those documents show that he has hasn't committed a ca i c i m t but the burden of proof is only by a preponderance of the evidence and if he's provided all of the documents that exist and no one just arguing i don't think you are because i think you did a search in this case that any more documents exist idea that show why they don't tend to exist at least with respect to level mr millionaire charges why the presumption that the legal presumption it wasn't a factual presumption it was a legal presumption that we made in our prior case last why that doesn't give him a pass the preponderance of the evidence standard that's a very low standard it's fifty one percent and ambiguity what does that have to do with meeting the burden of proof of least that presumption simply does not apply to the at the in question of which version of the crime was issued the least that presumption did not apply johnson's the court's passing language was describing the district court's opinion belief that something did not apply impaler where the issue otherwise would have come up courts have not applied the least that presumption on the context of determining what a particular set of elements required what it means because to find the defendant has committed those elements the jury need only find the minimum  conduct to go to your broader boyden you need but what you need is the shepherd documents proving that and if they don't exist then you're back to the fact that it's a matter of long there's no proof that you committed that act because what you were charged with and what the documents show is the possibility that you might have but not that you did you have to prove the conviction that you were convicted of c i mt and in fact you weren't what the aliens burton is under the regulation once you know that he might have been convicted of the disqualifying of what you know is that event has the burden of showing the opposite in that sense he has to prove a negative but that's exactly what the statutory eligibility the negative but the negative counsel is very clear and negative and that is june the records of my conviction show that i was convicted of c i and t the answer is no they don't show that they show that i was convicted legally of a crime that does not fit that has subdivisions for parts of it that don't fit a see i am t so i that's where i'm having trouble seeing why that's a factual rather than a legal question what kind of documents that exists showed and they showed that as a matter of law i wasn't convicted of a cia entity alien's bird is not to show that the available records don't show that he is disqualified what could start by asking you about the legal factual question because i understand that you don't think a question of law is affected by a burden of proof that would be a right right i would narrowly say that we don't think the leaseback presumption in th let's take an analogy and i guess just st i mean let's remember how we decide that factual question we decided by looking under shepherd to a set of the eagle documents so here's my analogy let's say this is a contract case and the question was what did i agree to now in one sense that's as much a factual question as this one this and yet because we look to the contract when we look to the contract to determine what i agree to we don't think of it as a factual question anymore we think of it as very much a question of always doing contract interpretation why isn't the say same truth here i think the contract analogy works once you've identified the elements and you're trying to understand what they mean what conduct they require in this context as a matter of i honestly don't think it has anything to do with that mr bond i mean in the contract it's like it's a factual question what did i agree to when we must because we look to the contrast and that's a legal document we treat that question as a question of law and so to hear the only question i'm talking about now is the preliminary one what were you convicted of but because you to a set of legal documents it becomes a question a lot and i'll just add to this mr bond that is the way every court in america treats every court of appeals in this country uses it to know both standard in aca cases in order to review that two things your honor st even if you don't think it's a factual question it is at a minimum a mix question which is equally susceptible of a burden of proof like an equitable told in question which i suspect to a predator but involves applying the legal standard in this context what you were convicted of still would statute is opaque if it's just a tool the question is why should our basic approach change the basic approach which as somebody else said you know has been applied to aca and to immigration cases the basic approach will not impose the penalty enhancement or impose the unfavorable immigration treatment so why should that general approach all of a sudden change here i was pleased to think st without answering that interesting question if you can identify which element of elements was an issue you just can't perform the categorical analysis of determining what the least acts are if you look at this nebraska statute on each of our grief you can't identify which of these is the least version there just different crimes you need to isolate it st so i don't think you get into that question of applying the categorical approach instead congress made the judgment of what the effect of the lack of certainty is which is justice for which mr upon which you agree that a great many misdemeanor crimes across the country have divisible statutes but are not papered it away to leave allow anyone to know with any certainty which portion of the statute the defendants are convicted of i don't know that person and i have no reason to dispute ok let's just suppose that's the case it seems to me that if we go down the shepherd road here and say that the that immigrants are restricted to certain kinds of proof the documents they can use to show their eligibility in a great many cases where the have these divisible misdemeanor statutes nobody's going to be able to tell right so one of two things are going to happen they all lose right and i think that's the position you're asking us to adopt or maybe we should allow them to prove i want every means necessary including by their sworn statement whatever credible evidence an i j would allow what actually happened and in this case for example that mr prita wasn't using the so security card to defraud anybody of anything but just to get a job what do you say to that though as i mentioned earlier the government has an article it's argued for that broader catholic definitely not implicated here but we have no objection to that general approach but to the st part of your question of what is the result when those documents simply don't exist for whatever reason there is an exception final sentence of that provision says is that if the i j a otherwise find the alien testimony credible but the i j a request corroborating information alien must apply that corroboration unless you demonstrate that he doesn't have it and can't reasonably have an it a board in the amount of rain of a supply that in the context of a fire conviction and that it's all about corroborating his testimony but and i admit that's a possibility that comes in later right i mean nothing in the statute agree with me compels shepherd i agree with you that nothing compels separate but i don't agree that testimony comes in at a later point the starting point for an application is a sworn statement describing the aliens own criminal history and at the hearing the i j a can follow up with questions of the alien who is present asking about what was right we agree with that although the very sketchy we're talking about begins by requiring the alien to follow the instructions on the form for congress to read let let let me let me turn to another area entirely and that is do we do we have burdens of proof in contract interpretation cases and do they sometimes become questions of fact about what a contract means a contract interpretation just you can certainly turn on questions of fact but there can be antecedent questions about is this document the authentic version or are these are offering competing pieces of paper saying this is the final document that can raise the facts reflection and that's the question we have here is this indictment for example the final indictment that was used that was charged or is this plea agreement authentic those kinds of factual questions underl question presented here thank you if this kavanagh thank you and good afternoon mr bond want to broaden it out a little bit here and talk about the context we're talking about eligibility for cancellation of removal and you want to say that he is categorically ineligible for cancellation of removal even if you lose here the executive branch correct me if i'm wrong could still deny cancellation of removal and remove him the nd record the executive would have that discussion that's correct ok so we're just talking about categorical and eligibility and therefore since you would still have the discretion to deny it seems to make sense to think about how this works in practice and here and you consider the facts of this case typical of the cases where this kind of issue arises i'm not sure which aspect of the pack you mean the typical but i think if it isn't and a very unusual case in which the alien is representing that he can't produce the documents that show which version of the statute be pleaded guilty to being even though the immigration proceeding predated his criminal conviction and his immigration attorney told the i j a this ongoing criminal conviction a criminal proceeding may affect the outcome so i think this case illustrates why it was sensible for congress to put the burden of proof on the alien and  thinking i was thinking more of the he's lived here for twenty five years in the united states has a wife and three kids here one of whom is a us citizen and works construction and cleaning had a fraudulent social security removal in the thin reed corresponds legally to when you have such kind of offense it's not surprising it's just as course it says that the records are going to be then as well and we're going to sit on john sorry to interrupt but the special dispensation you could still deny cancellation of removal that's the point i started with and wanted to underscore so it's not taking away the executive branch's ability to deny cancellation of removal free rule against you it's just taking away the argument that someone in this situation has been here for that long with this kind of offenses categorically ineligible i think when it does the merits of the proceeding and i would add that i think congress would in particular not have intended the statute to allow moving to the discretionary phase with an alien who had every opportunity and incentive to create and preserve the very records that are at issue here there's no explanation for why those records were presented and create in the st place when he had every reason and opportunity to do that thank you mr von going to wrap up mr bond thank you mr chief justice petitioners basic argument is that you should start with decisions that put a gloss on various other statutes and retrofit this statute to match we submit that that is backwards the court should start with a governing statutory tax and here that text answers the question presented by putting the burden of proving eligibility on alien including a lack of disqualifying convictions and in our view congress's judgment is compatible with this court's precedent addressing the categorical and modified approaches but if there were any inconsistency or tension it should be resolved in favor of the language congress enacted to address this particular issue the court of appeals decision should be affirmed thank you counsel three minutes for rebuttal thank you mr chief justice i'll try to make four points quickly st i agree with my friend on the other side that this is an issue of statutory interpretation but congress passed two provisions one uses the term conviction that embraces the least acts presumption which congress understood serves the important functions that we've discussed separately congress passed a burden of in the opening argument about the burden of production and that came up in the last half hour and i would just emphasize that the government produced the documents here page to a of our blue briefs has the certification of the immigration officer and that wasn't an act of generosity here that is what the government does in all of these cases and that is because it bears the initial burden of production to show the existence of a conviction that it reached on its face it appears to be disqualifying prove to portability as for the regulation that my friend on the other side mentioned section one thousand two hundred and forty point eight the attorney general's own interpretations of that regulation in the matter of the g g case and the matter of s k case that we've cited in our reply show that that regulation places an initial burden of production on the government not to speculate that barmy apply but to actually make out a full prime official case that the bar to release may apply chief justice you asked about some of the practicalities around memorializing the terms of a plea and i didn't hear my friends on the other side give any answer to how this could work for old convictions like the decades old convictions that i mentioned nor did i hear any answer to how exactly the criminal defendant could force something to be recorded in the many county and state systems where this is simply checking off boxes on a computer program or a paper form and there's no opportunity to comment further finally my friend on the other side mentioned efficiency concerns around allowing these cases to be decided at the threshold and i would just note that our rule has been in effect in the st circuit since two thousand and sixteen in the nd circuit since two thousand and eight and in the th circuit for six of the last thirteen years and as in the nose for all that case last term when the government made a similar efficiency argument it has not substantiated that by pointing to any actual problems arising in those circuits the judgment should be reversed thank you counsel for the cases submitted