Legal Case Summary

Good afternoon everyone. And please to have everybody here. And we'll call the case, Silbus versus the authoritarian general in the United States. Mr. Munech? Munech, yes. Okay. Definitely, John. May I please the court? Right, meaning for petitioner Damien Sidblis. I'd like to reserve three minutes for a bottle like this. How many? Three minutes? Three minutes. That request will be granted. Now in this case, petitioner was convicted of a session of controlled paraphernalia, which is a Virginia statute that appears in the Prefections and Occupations timing. The question before this court is whether that Virginia statute relates to federal control substances. And to answer this question, the court can look at the analysis laid out in the Barone B Attorney General decision. Can I ask you why we would look to Barone and not look to Rojas, which seems to have some pretty specific language about not using the categorical approach, but instead using a straightforward relating to analysis. Yes, sir Jordan. In Rojas, the court breaks down the test into two steps. And under step one, the court says that it specifically affirms the finding in Barone. And while it, Barone does make reference to a categorical approach, the analysis in Barone still does consider in fact the range of behavior targeted by the statute

. Right, but I thought we were pretty clear in Rojas in saying that Barone didn't, in Barone, we looked at the categorical approach for one piece, but we looked for the relating to us to the other piece of the test. And that's what we're doing. And in fact, in looking at the step one, which you rightly note was conceded in Rojas and isn't here, our court in bank said it's clear that the categorical approach, the modified categorical approach, have no place in this analysis. It's a straight up relating to analysis. So how do you get around that? Well, you're on our, we can see that the relating to analysis is not the same as the categorical analysis, but in Barone, it did actually look at the relating to analysis in the context of considering the interconnection between the FDA and control substances and did not do an element to element matchup. It did consider, and in Rojas, they quote language from Barone, having to do with this range of behavior targeted by the FDA. And so that's, to that extent, that's the reliance on Barone that I would point the court to. Okay, well then, I guess my question more specifically to you is, to the extent you think Barone says we apply a categorical approach, isn't that by the boards after Rojas? Isn't your entire argument that, hey, this is a categorical approach case gone after Rojas says it isn't under these cases, under these circumstances, it's step one, not a categorical approach. Yes, that's correct, just right. The underlying categorical approach that was initially argued by petitioner is no longer a valid argument in light of the Rojas decision. However, even under the relating to analysis, the factors that were used by the court in Barone, if you apply those factors to this Virginia statute, possession of control paraphernalia, it mirrors very similar the analysis in Barone in that the range of behavior targeted by the Virginia statute was not intended to cover controlled substances, rather it addresses controlled drugs. The statute itself uses controlled drug seven times, and the underlying control paraphernalia title has several ways to violate that statute that have nothing to do with possession of controlled substances. How would you address this language from Barone? In Barone, we said, quote, paraphernalia statutes relate to controlled substances, even though they prohibit the possession of instruments rather than controlled substances themselves, because the possession of an item intentionally used for manufacturing, using testing or enhancing the effect of a controlled substance necessarily pertains to a controlled substance. I'm going to quote. Well, Your Honor, the Virginia statute uses the language controlled drug, not controlled substance. And so that's fine, I'm not sure. Sorry, that's the distinction between a controlled substance and a controlled drug. So when we said paraphernalia statutes relate to controlled substances, your argument is, yeah, but the Virginia statute said controlled drugs

. Yes, just like the quote on Barone, that in Barone, the petitioner was convicted of distributing drugs without a license. And the court looked at the underlying substances criminalized by drug and looked at what's called the orange book. And so under this Virginia statute, it criminalizes the definition of drug under the Virginia statute under 54.13401, specifically mirrors the underlying FDCA definition of drugs. It's the same definition as the federalizes in the British. Yes, but let me ask this, and it related to analysis, which Rojas requires controls in this case. If the Virginia paraphernalia statute does not relate to controlled substances, what does it relate to? It relates to controlled drugs, aren't it? Okay. And not controlled substances? That's correct. And the reason for that is because the underlying statute requires that the underlying controlled paraphernalia be used with the indicia that the person will illegally administer a controlled drug or illegally dispense a controlled drug. And again, the reason why I refer to barone is that barone specifically addressed this distinction between a drug versus a controlled substance. And so if you take that distinction, I think you take a back into a categorical approach with that analysis. Well, the Rojas decision referred to barone in that the underlying substance criminalized was not a controlled substance. And so I don't think that Rojas repudiated barone. I think that Rojas would say that the FDCA statute also does not relate to controlled substances because it criminalized drugs, not controlled substances. All right. Yeah. Your case is in a slightly unusual posture as it relates to Mr. Silvus' removable ability

. Because on one hand, he can, there's the question of whether or not he's removable because he overstayed. Yes, Your Honor. And there's no question. That's considered. He overstayed. You can see that. So you overstayed. So it seems to me at that stage, the government has established removable ability. Yes, Your Honor. Would you agree with that? I would, Your Honor. Yes. Okay. Now, the question, I think the interesting question and the one that we haven't resolved here, Yes, Judge. Is who has the burden? Who has the burden to demonstrate eligibility for relief where the record is inconclusive as to what the drug was? I mean, I think that's the question that we have to decide. It's my personal, my opinion, not opinion. It's the court finds that the underlying statute of conviction does relate to control substances at that point. I think it does become a question of under Rojas Step 2, whether the record of conviction identifies a federal control substance. Yeah

. And your supplemental letter, you just said, you don't need to address that. That's correct, Your Honor. Because the petitioner feels that under Step 1, because the language in Barone referring to drugs, not control substances, that this underlying Virginia statute would also not relate to control substance. Well, why don't you address that Step 2 argument and then just work as a question, too? Yes, Your Honor. No, no, you're doing fine. So the underlying burden of proof analysis, the government refers specifically to statute 12.99 AC4. And if you look at that statute, it also provides for how the alien is to meet a burden of proof. And it refers specifically to testimony, documentation, or other information, or other evidence. And then it says that after that is submitted, the judge weighs that evidence and looks at the factual conclusions and makes a determination. When, in Rojas, the court pointed out that when the underlying record of conviction is being analyzed, you are not considering the underlying behavior of the alien. Rather, you are looking at what the alien was convicted of. And so, in that circumstance, it doesn't make sense to say that the alien has the burden to demonstrate a legal question. I mean, the legal analysis would control here and either the record of conviction identifies the control substance as defined by the federal schedules, or it doesn't. So is the Ninth Circuit in bank and younger's holder just completely confused? Your Honor, the Ninth Circuit decision, only two of the 11 judges actually agreed with the end result. Five of the judges found that there was the categorical approach applied. And that analysis applied because it was an aggravated felony was the underlying basis. And then four of the judges found that the alien should be able to submit evidence outside the record of conviction in order to meet their burden

. But a majority of them decided that the burden was on the petitioner in that case, right? Yes, a majority decided that it was a burden. And a separate majority found that the categorical approach applied. Even if there's a dispute as to what should be proven, isn't the petitioner always have the burden in every one of these cases to establish entitlement to relieve? Well, again, I think if you look at the burden-approved statute that switches this burden for relief applications to the alien, it's talking about factual questions. So if the alien has to demonstrate extreme hardship or a specific amount of time residing in the United States, those are all factual questions that the alien can submit evidence, testimony, that does ways that and makes a factual determination. When the underlying question is whether the record of conviction identifies the only thing that the alien can possibly do is produce the record of conviction and either the record of conviction identifies the actual substance or it doesn't. Now, how do you deal with what would seem an asymmetric fall out for the government here? Yes, right. If in Rojas, we say to them, hey, in conclusive record, you lose when you've got the burden-approved. And then we work to say, in conclusive record, you still lose when the petitioner has a burden-approved. Doesn't that strike you as odd? Well, I guess I would respond to your words, Judge. The first, the burden-approved for the government to establish a moveability, that's not the same thing under the 1229C4 switching of the burden-approved. I mean, that question is addressing factual issues. What's this, isn't it precisely the same? There's a two-step process. It's set forth in 1227 when the removability is the issue. The government bears the burden. And an inconclusive record means they lose. That's Roas. Here, it's the exact same statutory issue, 1227. But the real ID act puts the burden on your client

. There's an inconclusive record. Why doesn't that mean the petitioner loses? Just like it means the government loses when the burdens on them to demonstrate removability. Well, again, the underlying statute, when it talks about how the petitioner satisfies their burden-approved, that does not apply to the government. So in other words, the government cannot produce testimony to establish a moveability. The government cannot provide documentation or other information to establish a moveability. The government can only provide the record of conviction to establish a moveability or not. And the underlying analysis that the evidence must indicate clear and convincing that the alien is removable. When an alien demonstrates that the record of conviction is inconclusive, that does not mean they win their case. Because as the government acknowledges, the underlying burden-shifting applies only in cases where the alien is applying for relief from removal. Relief from removal almost exclusively is a discretionary form of relief as the court recognized in Monkrieg. And so if, in fact, the record of conviction is inconclusive, but the underlying factual basis for the plea is, can be discerned based on testimony, police reports. The judge would not be constrained from considering that in the exercise of discretion. If we agree with you- Yes, Your Honor. What do you want us to do in this case? I want this case remanded to the BIA. So in fact, the decision- What would the BIA, what position would this case then be in front of the BIA if we remanded it? Well, if the court orders that either the criminal statute does not relate to control substances, it would be one option. And then that leaves petitioner with only a single offense and we would be able to show, attempt to show that the other conviction was involving 30 grams or less and would qualify for the Louis Vu涂 under 1182H. If the court sends it back addressing the second question and says that underlying record of conviction is silent, it would result in a similar disposition where they would say the record is silent, it must go back to the immigration judge to give the judge a chance to review whether he meets the exception under 1182H. And what would the judge review in that circumstance? Well, the 1182H allows for a circumstance to the inquiry that can- that where the court can look at whether the underlying conviction involved 30 grams or less of marijuana

. So if the underlying conviction, they only would be able to present testimony to try to meet their burden in that circumstance. But on the paraphernalia issue. Well, in this case, the paraphernalia, the substance is not identified, the paraphernalia is not identified. And so it would be legally that it does not implicate the inadmissibility ground for that paraphernalia conviction. It would only be the second marijuana possession that would be implicated. Okay. Thank you. We'll have you back on the bottle. Yes. Mr. McAster. I have three in your honor. May please the court. I'm Anthony Nicashe, I represent the Attorney General in this case. Judge Fisher, you're exactly right. The issue that is right before this court, in this particular case, is whether or not the alien has met his burden proof to show eligibility for relief on the statute and under the regulation by showing an inconclusive record of conviction. There are certain things that are not in contention. I think the court's already pointed that out

. One is clear that the petition is removable from the United States. The overstated is visa and there's no contention. Two, the petition has the burden to establish eligibility for relief. Petition to concede that in his brief on page 14 through 60. The acknowledges that burden is on him. So the only thing that this court needs to decide within the context that Rojas framed is whether or not this alien has the burden to show what the substance was that the control-pathernic conviction relates to. But don't we have to get through Rojas step one? Well, I think, I think, I mean, it seems to me we have to do the related to analysis. Yes, Your Honor, and I think Judge Jordan is right. The related to analysis is there, and in some ways, Barom almost assists in the relate to because it's clear that it talks about how the peripinative statutes are related to controlled substances. Then answer your opposing counsel's argument that sure Barom says parapinative is related to controlled substances, but the Virginia statute specifically speaks of controlled drugs and the definition mirrors the FDA. Which Barom says, you can't reach out to under a categorical approach. Doesn't work. It won't match up. Right. I think in answer to that question, there's a couple of things. I think that Rojas is straight, it's now spoken on the first prong. It says this is related to. And Barom says, took a look at parapinative statutes

. parapinative statutes is the word that the Barom used. It says it relates to a controlled substance. And I think the language is any law related to a controlled substance reaches those laws that do not require the actual involvement of a controlled substance. Sure. And I'm trying to get you to speak directly to your learned friends specific argument that Barom is an on point because we're talking about a controlled drug, quote unquote, defined in the Virginia statute. And that's different, really different than controlled substance. That's the argument that's being made to us. So that's the argument I'd like you to meet. Yes, you're on an all in two parts. First in Barom, what was critical in that analysis, and they mentioned it twice in Barom, is that the words controlled substance were never in the federal statute that was under issue here. Here, there is a term, dangerous, I mean, controlled, dangerous substances within the Virginia statute. That's the first point. The second point is Barom also recognizes that there's an overlap between controlled substances and controlled drugs. Barom recognizes that. And what Barom did, and you must remember that Barom was a removable case. They said that that nexus is too tenuous for deportability purposes. Didn't talk about removal purposes. Talk about removable purposes

. And that connection, that nexus, which they recognize that there is overlap. And I think the term, you're making a distinction between deportability and removable. No, deportability, I'm sorry, deportability and removable ability are one and the same. Right. The distinction I'm making is between removable ability and deportability in the same butt and relief. All right. Gotcha. And Barom said that tenuous connection, yes, they recognize there is overlap. And I think the example they use is oxycontin in Barom. There is overlap, but that, that is too tenuous for removal ability. They use the word deportability, but it's the same thing. Right. Here, we're in the relief stage. I think as Judge Fisher pointed out, that is critical. And that's what Rojas addresses, the inconclusive record. And that burn is squirrely placed on the alien. Like the ninth circuit, Ombonc and Young placed it there, the tenth circuit in Garcia placed it there, and the fourth circuit in Salon placed it there. That's the second circuit, didn't it? The second circuit has not. And what's interesting about the second circuit is that initially, Young, when this case was originally breached, Sandeval Luau followed Martinez in the second circuit. However, on Reloq, Ombonc, they decided that that that analysis by the second circuit was flawed. So they looked at their own case, though, that relied on Martinez and said, we're going to find that the inconclusive record does not satisfy the alien's burden on the statutory or regulatory burden he bears. Does Moncreef have anything meaningful to say about what's going on in this case? The government would say no, Your Honor, because Moncreef, again, was a removable case. So they never analyzed the relief statute, and they never analyzed the regulatory provision on burden of proof. It was not a relief case. So they didn't do the analysis that the ninth, the fourth, and the tenth did on this particular statute. And the uniqueness and removal proceeds on the shifting burden that the fourth circuit explained nicely in their decision. OK, and if you would, you want to take on again, I know you hit it in your answering brief, but in the reply brief, the petitioner again goes to Thomas, our decision in the United States versus Thomas, and it says that we held that because the record was inconclusive, that Thomas had met his burden of proof and was eligible for cancellation of removal. What's is that with Thomas? How what's wrong with the line argument that they've made? I think there's two things about the Thomas decision. First, and that has such limited applicability here. First of all, the Thomas court did not analyze the statute nor the regulatory burden in depth. They do mention it. They said the burden is in, but that's it. They must have arrived at that conclusion. There's no other way they could have. Well, obviously they did arrive at that conclusion, but whether the analysis is proper now under the Rojas decision is leaves open the question on whether that is applicable in the pure context of relief from removal in this particular case. And the particular statute that is involved, which is a control pattern, a value statute

. And what's interesting about the second circuit is that initially, Young, when this case was originally breached, Sandeval Luau followed Martinez in the second circuit. However, on Reloq, Ombonc, they decided that that that analysis by the second circuit was flawed. So they looked at their own case, though, that relied on Martinez and said, we're going to find that the inconclusive record does not satisfy the alien's burden on the statutory or regulatory burden he bears. Does Moncreef have anything meaningful to say about what's going on in this case? The government would say no, Your Honor, because Moncreef, again, was a removable case. So they never analyzed the relief statute, and they never analyzed the regulatory provision on burden of proof. It was not a relief case. So they didn't do the analysis that the ninth, the fourth, and the tenth did on this particular statute. And the uniqueness and removal proceeds on the shifting burden that the fourth circuit explained nicely in their decision. OK, and if you would, you want to take on again, I know you hit it in your answering brief, but in the reply brief, the petitioner again goes to Thomas, our decision in the United States versus Thomas, and it says that we held that because the record was inconclusive, that Thomas had met his burden of proof and was eligible for cancellation of removal. What's is that with Thomas? How what's wrong with the line argument that they've made? I think there's two things about the Thomas decision. First, and that has such limited applicability here. First of all, the Thomas court did not analyze the statute nor the regulatory burden in depth. They do mention it. They said the burden is in, but that's it. They must have arrived at that conclusion. There's no other way they could have. Well, obviously they did arrive at that conclusion, but whether the analysis is proper now under the Rojas decision is leaves open the question on whether that is applicable in the pure context of relief from removal in this particular case. And the particular statute that is involved, which is a control pattern, a value statute. And I think that analysis is controlled first part to relate to under Rojas. So it simply has to identify the substance. And as George Jordan pointed out, it seems to be that if Rojas places the burden on the government, the removable proceedings, in other words, we cannot show with a conclusive record of conviction what the substance was, then that alien is not removable. We lose. The inverse should be true for relief. I may have cut off your answer to Judge Jordan's question. So you're distinguishing Thomas by saying that they didn't engage in an analysis. They just made a concursory statement. I think, and that Rojas in effect, there were rules. I think in part, it's certainly the first part is true that the mention of the statute, and I'm not sure that you mentioned the regulation in Thomas, was a cursory analysis. And they looked, they went right to the categorical approach in Thomas, which the board used in finding that that particular offense and promise, believe it was distribution of marijuana, was not categorically a crime. And I think Rojas has changed the landscape on that, especially, and how it relates to a paraphernalia statute, and the related to analysis, which is different than what Thomas looked at. I want to read you something from Thomas. I have you respond to it. This is the court on page 146. We cannot definitively establish the Thomas actually admitted during the guilty proceedings that he sold or exchanged in marijuana, et cetera, et cetera. And then we go on and say, it's equally plausible his admission of guilt-less conduct, which would not cause to diapethetical federal felony. I mean, it certainly looks here as if we're trying to figure out something about an inconclusive record

. And I think that analysis is controlled first part to relate to under Rojas. So it simply has to identify the substance. And as George Jordan pointed out, it seems to be that if Rojas places the burden on the government, the removable proceedings, in other words, we cannot show with a conclusive record of conviction what the substance was, then that alien is not removable. We lose. The inverse should be true for relief. I may have cut off your answer to Judge Jordan's question. So you're distinguishing Thomas by saying that they didn't engage in an analysis. They just made a concursory statement. I think, and that Rojas in effect, there were rules. I think in part, it's certainly the first part is true that the mention of the statute, and I'm not sure that you mentioned the regulation in Thomas, was a cursory analysis. And they looked, they went right to the categorical approach in Thomas, which the board used in finding that that particular offense and promise, believe it was distribution of marijuana, was not categorically a crime. And I think Rojas has changed the landscape on that, especially, and how it relates to a paraphernalia statute, and the related to analysis, which is different than what Thomas looked at. I want to read you something from Thomas. I have you respond to it. This is the court on page 146. We cannot definitively establish the Thomas actually admitted during the guilty proceedings that he sold or exchanged in marijuana, et cetera, et cetera. And then we go on and say, it's equally plausible his admission of guilt-less conduct, which would not cause to diapethetical federal felony. I mean, it certainly looks here as if we're trying to figure out something about an inconclusive record. And in the end, we say, will Grant Thomas's petition for review? So, why is this case not Thomas, even though Rojas has said some things about how we're gonna approach something analytically related to versus categorical approach, rejecting that piece of Thomas, how the burden falls seems to be us saying the burden falls on the government. Why are we not bound by that even after Rojas? Okay, you're on, I guess the best way I can explain that is that in Thomas, the court was looking at a very specific finding that the board made. And they looked at it and said, no, boy, you're wrong, so categorically. So now we can't tell it conclusively. And they didn't really address the burden in Thomas. They didn't look at how that shifts within the paradigm of the immigration proceedings. I guess what I'm trying to get, and I think this is, I don't wanna put words in, Judd Circus mouth, but what he was asking when I'm trying to draw you out on is, how are you distinguishing Thomas on this crucial point? Implicitly, if not explicitly, we put the burden on the government in Thomas. Wouldn't you agree? I think you could be read that way, but I think you could be read it another way, because we are saying it's inconclusive and then saying government you lose. Petitioner's petition is granted. How do you read it other than that? I would say that within Thomas, that the analysis on the shifting burdens was not fully developed. And I think the Rojas has now called into question with it's on the very similar statute, a paraphernalia statute. It's certainly, Rojas certainly cashiers the categorical, modified categorical approach that was employed in Thomas. But how does it speak to the burden of proof? It does, Thomas or Rojas? Rojas really doesn't speak to the burden of proof except from the government's standpoint. And just arguing, inversely, now that the burn is on the alien, Rojas the burn is on the government. Here the burn's on the alien. It's a paraphernalia statute. Any conclusive record you cannot identify the substance, cannot identify in Rojas, you cannot identify it here. And I think that changes the paradigm on how Thomas is viewed in the relief standard now that Rojas has come out of law

. And in the end, we say, will Grant Thomas's petition for review? So, why is this case not Thomas, even though Rojas has said some things about how we're gonna approach something analytically related to versus categorical approach, rejecting that piece of Thomas, how the burden falls seems to be us saying the burden falls on the government. Why are we not bound by that even after Rojas? Okay, you're on, I guess the best way I can explain that is that in Thomas, the court was looking at a very specific finding that the board made. And they looked at it and said, no, boy, you're wrong, so categorically. So now we can't tell it conclusively. And they didn't really address the burden in Thomas. They didn't look at how that shifts within the paradigm of the immigration proceedings. I guess what I'm trying to get, and I think this is, I don't wanna put words in, Judd Circus mouth, but what he was asking when I'm trying to draw you out on is, how are you distinguishing Thomas on this crucial point? Implicitly, if not explicitly, we put the burden on the government in Thomas. Wouldn't you agree? I think you could be read that way, but I think you could be read it another way, because we are saying it's inconclusive and then saying government you lose. Petitioner's petition is granted. How do you read it other than that? I would say that within Thomas, that the analysis on the shifting burdens was not fully developed. And I think the Rojas has now called into question with it's on the very similar statute, a paraphernalia statute. It's certainly, Rojas certainly cashiers the categorical, modified categorical approach that was employed in Thomas. But how does it speak to the burden of proof? It does, Thomas or Rojas? Rojas really doesn't speak to the burden of proof except from the government's standpoint. And just arguing, inversely, now that the burn is on the alien, Rojas the burn is on the government. Here the burn's on the alien. It's a paraphernalia statute. Any conclusive record you cannot identify the substance, cannot identify in Rojas, you cannot identify it here. And I think that changes the paradigm on how Thomas is viewed in the relief standard now that Rojas has come out of law. So if I'm hearing you right, you're saying, if Thomas put the burden implicitly on the government, Rojas implicitly puts the burden back on the petitioner. Yes, well, not the, I think Thomas recognizes the burns on the alien, but says it's inconclusive because it says, much he could be and is in much he couldn't. So they have to you satisfy your burden alien. So I think that they, while they say it's on the burns on the alien, I think they keep it there, but they don't really look, there is some shifting there on it. And I think Rojas has called it to, question implicitly, probably the best term to use on whether or not that's still accurate. Thank you, Rojas. All right, thank you, Mr. Nacastra. Mr. Munech. Yes, like I just, in terms of the young beholder decision, the ninth circuit panel currently addressing the Almanza case has asked for supplemental briefing as to whether or not Monk Reef has overruled the decision, the online decision in young beholder. How could it have done that? Well, if as the government says, it's a removable case, then I'm able to do with relief. That wasn't even an issue. Wasn't even brought up by the Supreme Court. I wouldn't agree with that characterization. In Monk Reef, the person was also looking at an aggravated felony, purposes of relief of cancellation. So I wouldn't characterize it that way. And what the Supreme Court said critically in Monk Reef is that this analysis is a legal question

. So if I'm hearing you right, you're saying, if Thomas put the burden implicitly on the government, Rojas implicitly puts the burden back on the petitioner. Yes, well, not the, I think Thomas recognizes the burns on the alien, but says it's inconclusive because it says, much he could be and is in much he couldn't. So they have to you satisfy your burden alien. So I think that they, while they say it's on the burns on the alien, I think they keep it there, but they don't really look, there is some shifting there on it. And I think Rojas has called it to, question implicitly, probably the best term to use on whether or not that's still accurate. Thank you, Rojas. All right, thank you, Mr. Nacastra. Mr. Munech. Yes, like I just, in terms of the young beholder decision, the ninth circuit panel currently addressing the Almanza case has asked for supplemental briefing as to whether or not Monk Reef has overruled the decision, the online decision in young beholder. How could it have done that? Well, if as the government says, it's a removable case, then I'm able to do with relief. That wasn't even an issue. Wasn't even brought up by the Supreme Court. I wouldn't agree with that characterization. In Monk Reef, the person was also looking at an aggravated felony, purposes of relief of cancellation. So I wouldn't characterize it that way. And what the Supreme Court said critically in Monk Reef is that this analysis is a legal question. And they also do not address the burden of proof, as just like the court in Thomas did. And I think the reason why there's this confusion is that both the third circuit, the Thomas panel and the Monk Reef court recognize that it doesn't make sense to speak of burden of proof in terms of a legal question as to what the record of conviction shows. And alien by the statute is not allowed to submit evidence outside the record. And only can submit the record of conviction. So if there's any burden that applies, we would only be a burden to produce the record of conviction. And the underlying decision in, well, and then Thomas as well is important to recognize that again, that that was also a relief case. It was not, I mean, yes, it was removable as an aggravated felony, but as Kishner pointed out in the reply brief, that doesn't really help the government very much because what happens is that instead of saying, does it help the government, here's what I understand Mr. Kastery is saying. I understand him to be saying to us, look, Rojas cleared up any confusion there was about what the consequence is of failing to clear up a murky record when the burden of proof is on the government and you don't clean up a murky record, you lose on your removable case when the burden is on the petitioner and you don't clean up a murky record, then you lose because the burden falls there. And Rojas makes that at least implicitly clear and that addresses Thomas if I understood his argument, right? What's wrong with that assertion? In mom grief, the Supreme Court overturned the BIA decision in Rodriguez that specifically said, an alien has the burden to show that the no remuneration and the minimum amount of marijuana exceptions apply in their case. And the Supreme Court rejected that, even though those weren't elements of the offense, they were sentencing factors. So you're focusing, you're focusing exclusively on Rojas' problem one. That's, if I understand you right, that's gotta be your argument because you keep distancing yourself from the government's assertion that there's a murky record here by saying, I guess it's a legal question we're never gonna get to the murky record. You just wanna look at that related to and you just wanna make an illegal judgment about whether related to covers the Virginia statute. If I understood you correctly, I might have spoken your honor. The Court can certainly get to the second question. If it's fines at the statute relates to control substances, it should proceed to step two in Rojas and determine whether the record of commission identifies. And if we get to that, do you concede that if the record's murky and the burdens on your client, that your client loses? If the court interprets the burden in the way that the government is suggesting, then yes, but that's not the way the burden of proof should be interpreted here

. And they also do not address the burden of proof, as just like the court in Thomas did. And I think the reason why there's this confusion is that both the third circuit, the Thomas panel and the Monk Reef court recognize that it doesn't make sense to speak of burden of proof in terms of a legal question as to what the record of conviction shows. And alien by the statute is not allowed to submit evidence outside the record. And only can submit the record of conviction. So if there's any burden that applies, we would only be a burden to produce the record of conviction. And the underlying decision in, well, and then Thomas as well is important to recognize that again, that that was also a relief case. It was not, I mean, yes, it was removable as an aggravated felony, but as Kishner pointed out in the reply brief, that doesn't really help the government very much because what happens is that instead of saying, does it help the government, here's what I understand Mr. Kastery is saying. I understand him to be saying to us, look, Rojas cleared up any confusion there was about what the consequence is of failing to clear up a murky record when the burden of proof is on the government and you don't clean up a murky record, you lose on your removable case when the burden is on the petitioner and you don't clean up a murky record, then you lose because the burden falls there. And Rojas makes that at least implicitly clear and that addresses Thomas if I understood his argument, right? What's wrong with that assertion? In mom grief, the Supreme Court overturned the BIA decision in Rodriguez that specifically said, an alien has the burden to show that the no remuneration and the minimum amount of marijuana exceptions apply in their case. And the Supreme Court rejected that, even though those weren't elements of the offense, they were sentencing factors. So you're focusing, you're focusing exclusively on Rojas' problem one. That's, if I understand you right, that's gotta be your argument because you keep distancing yourself from the government's assertion that there's a murky record here by saying, I guess it's a legal question we're never gonna get to the murky record. You just wanna look at that related to and you just wanna make an illegal judgment about whether related to covers the Virginia statute. If I understood you correctly, I might have spoken your honor. The Court can certainly get to the second question. If it's fines at the statute relates to control substances, it should proceed to step two in Rojas and determine whether the record of commission identifies. And if we get to that, do you concede that if the record's murky and the burdens on your client, that your client loses? If the court interprets the burden in the way that the government is suggesting, then yes, but that's not the way the burden of proof should be interpreted here. And again, the reason for that is the same reasons why the categorical approach was developed in the first place. In this case, there is no record of conviction because the state of Virginia does not come off of Virginia, does not create a record of conviction. Well, how does the burden of proof ever lie on the defendant, on the excuse me, the petitioner, I'm having a hard time understanding how you ever bear the consequences of a failure of burden of proof under the analysis you're proposing to us. As the government always loses, unless I'm misunderstanding it. Anytime there's a factual question, if the alien doesn't meet their burden, they would lose. And isn't that exactly the issue that we would be confronted with here? If we were decided, if we were to decide at prong one, that this relates to the controlled substance, and therefore, satisfies step one. And now we're asking the question at step two, what's the nature of what actually happened here? I wouldn't characterize step two as I weigh your honor. I mean, the court in Rojas says we're not concerned with underlying acts of the convicted person. We are solely concerned with what they were convicted of, and the reasons for that limitation. I apologize, you're correct. What was he convicted of? He's convicted of an of a drug, paraphernalia offense, and you, it feels like you want to both ways, and my colleagues will just indulge me for a second, because I'm just having a hard time understanding how your conception of the burden of proof works. You seem on the one hand to be saying, it's just when you get to that step, it's all categorical and we win. But if that's the truth, it seems to me to drain all meaning from the idea that there's a burden of proof at step two as well. And if that's the case, what are we talking about, burden of proof at all? What does the statute mean? Well, I guess two parts. One, I don't think that the mailing necessarily wins if the record of conviction is unclear. Well, as I mentioned before, yeah, don't run off to its discretionary. That seems to me to be a complete sideline. Stick with me on what I'm trying to ask, if you understand it, if you don't, and my colleagues don't deck me for asking it again, answer the question I'm attempting to push

. And again, the reason for that is the same reasons why the categorical approach was developed in the first place. In this case, there is no record of conviction because the state of Virginia does not come off of Virginia, does not create a record of conviction. Well, how does the burden of proof ever lie on the defendant, on the excuse me, the petitioner, I'm having a hard time understanding how you ever bear the consequences of a failure of burden of proof under the analysis you're proposing to us. As the government always loses, unless I'm misunderstanding it. Anytime there's a factual question, if the alien doesn't meet their burden, they would lose. And isn't that exactly the issue that we would be confronted with here? If we were decided, if we were to decide at prong one, that this relates to the controlled substance, and therefore, satisfies step one. And now we're asking the question at step two, what's the nature of what actually happened here? I wouldn't characterize step two as I weigh your honor. I mean, the court in Rojas says we're not concerned with underlying acts of the convicted person. We are solely concerned with what they were convicted of, and the reasons for that limitation. I apologize, you're correct. What was he convicted of? He's convicted of an of a drug, paraphernalia offense, and you, it feels like you want to both ways, and my colleagues will just indulge me for a second, because I'm just having a hard time understanding how your conception of the burden of proof works. You seem on the one hand to be saying, it's just when you get to that step, it's all categorical and we win. But if that's the truth, it seems to me to drain all meaning from the idea that there's a burden of proof at step two as well. And if that's the case, what are we talking about, burden of proof at all? What does the statute mean? Well, I guess two parts. One, I don't think that the mailing necessarily wins if the record of conviction is unclear. Well, as I mentioned before, yeah, don't run off to its discretionary. That seems to me to be a complete sideline. Stick with me on what I'm trying to ask, if you understand it, if you don't, and my colleagues don't deck me for asking it again, answer the question I'm attempting to push. Sure. Again, I would look at section 1229AC4B, which talks about how the alien meets the burden of proof. And that shows what type of questions the connoisseurs intending an alien to have the burden of proof on. And it doesn't occur to you that those sorts of questions are things like what were you convicted of. That's correct, Your Honor. Can I be convicted? I believe limits the inquiry to the record of conviction. And the alien is not allowed to present testimony or evidence as to that conviction. They can only look at the record of conviction. It doesn't your approach by necessity? Get us to the point that under the Virginia Parapholy statute, there can never be a finding of related to. Well, in this case, the control paraphernalia statute is separate from Virginia's drug paraphernalia statute. Right. Virginia also has a control paraphernalia statute. I understand, but doesn't it get us to that result that under that control paraphernalia statute you can never have a related to case? Well, if it's because you work the burden through the categorical approach. And whether you use the categorical, the formal categorical approach and the modified categorical approach, we're gonna get to the point where you can say summer covered and summer aren't. And therefore, Virginia conviction can never for control paraphernalia's conviction can never be related to conviction. And less the record of conviction identifies the substance. So in effect, the conviction would be in a way legally infermed. Yes, Your Honor

. Sure. Again, I would look at section 1229AC4B, which talks about how the alien meets the burden of proof. And that shows what type of questions the connoisseurs intending an alien to have the burden of proof on. And it doesn't occur to you that those sorts of questions are things like what were you convicted of. That's correct, Your Honor. Can I be convicted? I believe limits the inquiry to the record of conviction. And the alien is not allowed to present testimony or evidence as to that conviction. They can only look at the record of conviction. It doesn't your approach by necessity? Get us to the point that under the Virginia Parapholy statute, there can never be a finding of related to. Well, in this case, the control paraphernalia statute is separate from Virginia's drug paraphernalia statute. Right. Virginia also has a control paraphernalia statute. I understand, but doesn't it get us to that result that under that control paraphernalia statute you can never have a related to case? Well, if it's because you work the burden through the categorical approach. And whether you use the categorical, the formal categorical approach and the modified categorical approach, we're gonna get to the point where you can say summer covered and summer aren't. And therefore, Virginia conviction can never for control paraphernalia's conviction can never be related to conviction. And less the record of conviction identifies the substance. So in effect, the conviction would be in a way legally infermed. Yes, Your Honor. And so the burden approved doesn't matter. Exactly. And that's the thing about speaking of the record as being inconclusive. I think that's really the wrong word to use. I think the correct word to use is that the record is indeterminate. When you say inconclusive, it seems like there is a possibility of determining if but for additional evidence. But in fact, under this legal analysis, if the record of conviction doesn't identify, as a legal matter, the alien hasn't been convicted of that offense. I mean, it's cabin in that way, but that's the benefit or that's the requirement of the categorical approach, which again, doesn't apply here in terms of comparing to a generic offense, but does apply in a sense that you're only looking at the record of conviction because the statute uses the phrase. But it means we go through some steps that aren't in the statute. Well, right. I mean, I believe that the whole point of establishing the categorical, modicative approach in the first place, I mean, was to prevent unfairness of having an alien held liable for something they didn't necessarily plead guilty to for administrative efficiency and to make sure that the alien is not prejudiced by having to rely on outdated or un-existent evidence. Thank you. Okay, thank you very much, Mr. Mayor. We thank both Council for the job very well done. And we will take this case under advisement. Thank you. Thank you very much

. And so the burden approved doesn't matter. Exactly. And that's the thing about speaking of the record as being inconclusive. I think that's really the wrong word to use. I think the correct word to use is that the record is indeterminate. When you say inconclusive, it seems like there is a possibility of determining if but for additional evidence. But in fact, under this legal analysis, if the record of conviction doesn't identify, as a legal matter, the alien hasn't been convicted of that offense. I mean, it's cabin in that way, but that's the benefit or that's the requirement of the categorical approach, which again, doesn't apply here in terms of comparing to a generic offense, but does apply in a sense that you're only looking at the record of conviction because the statute uses the phrase. But it means we go through some steps that aren't in the statute. Well, right. I mean, I believe that the whole point of establishing the categorical, modicative approach in the first place, I mean, was to prevent unfairness of having an alien held liable for something they didn't necessarily plead guilty to for administrative efficiency and to make sure that the alien is not prejudiced by having to rely on outdated or un-existent evidence. Thank you. Okay, thank you very much, Mr. Mayor. We thank both Council for the job very well done. And we will take this case under advisement. Thank you. Thank you very much. All right. Good man, we're done. Good man, we're done. Thank you. And the nice circuit is concerned. I think there's a lot of things more to do on that. I think there's a lot of things to do. But they keep going.

Good afternoon everyone. And please to have everybody here. And we'll call the case, Silbus versus the authoritarian general in the United States. Mr. Munech? Munech, yes. Okay. Definitely, John. May I please the court? Right, meaning for petitioner Damien Sidblis. I'd like to reserve three minutes for a bottle like this. How many? Three minutes? Three minutes. That request will be granted. Now in this case, petitioner was convicted of a session of controlled paraphernalia, which is a Virginia statute that appears in the Prefections and Occupations timing. The question before this court is whether that Virginia statute relates to federal control substances. And to answer this question, the court can look at the analysis laid out in the Barone B Attorney General decision. Can I ask you why we would look to Barone and not look to Rojas, which seems to have some pretty specific language about not using the categorical approach, but instead using a straightforward relating to analysis. Yes, sir Jordan. In Rojas, the court breaks down the test into two steps. And under step one, the court says that it specifically affirms the finding in Barone. And while it, Barone does make reference to a categorical approach, the analysis in Barone still does consider in fact the range of behavior targeted by the statute. Right, but I thought we were pretty clear in Rojas in saying that Barone didn't, in Barone, we looked at the categorical approach for one piece, but we looked for the relating to us to the other piece of the test. And that's what we're doing. And in fact, in looking at the step one, which you rightly note was conceded in Rojas and isn't here, our court in bank said it's clear that the categorical approach, the modified categorical approach, have no place in this analysis. It's a straight up relating to analysis. So how do you get around that? Well, you're on our, we can see that the relating to analysis is not the same as the categorical analysis, but in Barone, it did actually look at the relating to analysis in the context of considering the interconnection between the FDA and control substances and did not do an element to element matchup. It did consider, and in Rojas, they quote language from Barone, having to do with this range of behavior targeted by the FDA. And so that's, to that extent, that's the reliance on Barone that I would point the court to. Okay, well then, I guess my question more specifically to you is, to the extent you think Barone says we apply a categorical approach, isn't that by the boards after Rojas? Isn't your entire argument that, hey, this is a categorical approach case gone after Rojas says it isn't under these cases, under these circumstances, it's step one, not a categorical approach. Yes, that's correct, just right. The underlying categorical approach that was initially argued by petitioner is no longer a valid argument in light of the Rojas decision. However, even under the relating to analysis, the factors that were used by the court in Barone, if you apply those factors to this Virginia statute, possession of control paraphernalia, it mirrors very similar the analysis in Barone in that the range of behavior targeted by the Virginia statute was not intended to cover controlled substances, rather it addresses controlled drugs. The statute itself uses controlled drug seven times, and the underlying control paraphernalia title has several ways to violate that statute that have nothing to do with possession of controlled substances. How would you address this language from Barone? In Barone, we said, quote, paraphernalia statutes relate to controlled substances, even though they prohibit the possession of instruments rather than controlled substances themselves, because the possession of an item intentionally used for manufacturing, using testing or enhancing the effect of a controlled substance necessarily pertains to a controlled substance. I'm going to quote. Well, Your Honor, the Virginia statute uses the language controlled drug, not controlled substance. And so that's fine, I'm not sure. Sorry, that's the distinction between a controlled substance and a controlled drug. So when we said paraphernalia statutes relate to controlled substances, your argument is, yeah, but the Virginia statute said controlled drugs. Yes, just like the quote on Barone, that in Barone, the petitioner was convicted of distributing drugs without a license. And the court looked at the underlying substances criminalized by drug and looked at what's called the orange book. And so under this Virginia statute, it criminalizes the definition of drug under the Virginia statute under 54.13401, specifically mirrors the underlying FDCA definition of drugs. It's the same definition as the federalizes in the British. Yes, but let me ask this, and it related to analysis, which Rojas requires controls in this case. If the Virginia paraphernalia statute does not relate to controlled substances, what does it relate to? It relates to controlled drugs, aren't it? Okay. And not controlled substances? That's correct. And the reason for that is because the underlying statute requires that the underlying controlled paraphernalia be used with the indicia that the person will illegally administer a controlled drug or illegally dispense a controlled drug. And again, the reason why I refer to barone is that barone specifically addressed this distinction between a drug versus a controlled substance. And so if you take that distinction, I think you take a back into a categorical approach with that analysis. Well, the Rojas decision referred to barone in that the underlying substance criminalized was not a controlled substance. And so I don't think that Rojas repudiated barone. I think that Rojas would say that the FDCA statute also does not relate to controlled substances because it criminalized drugs, not controlled substances. All right. Yeah. Your case is in a slightly unusual posture as it relates to Mr. Silvus' removable ability. Because on one hand, he can, there's the question of whether or not he's removable because he overstayed. Yes, Your Honor. And there's no question. That's considered. He overstayed. You can see that. So you overstayed. So it seems to me at that stage, the government has established removable ability. Yes, Your Honor. Would you agree with that? I would, Your Honor. Yes. Okay. Now, the question, I think the interesting question and the one that we haven't resolved here, Yes, Judge. Is who has the burden? Who has the burden to demonstrate eligibility for relief where the record is inconclusive as to what the drug was? I mean, I think that's the question that we have to decide. It's my personal, my opinion, not opinion. It's the court finds that the underlying statute of conviction does relate to control substances at that point. I think it does become a question of under Rojas Step 2, whether the record of conviction identifies a federal control substance. Yeah. And your supplemental letter, you just said, you don't need to address that. That's correct, Your Honor. Because the petitioner feels that under Step 1, because the language in Barone referring to drugs, not control substances, that this underlying Virginia statute would also not relate to control substance. Well, why don't you address that Step 2 argument and then just work as a question, too? Yes, Your Honor. No, no, you're doing fine. So the underlying burden of proof analysis, the government refers specifically to statute 12.99 AC4. And if you look at that statute, it also provides for how the alien is to meet a burden of proof. And it refers specifically to testimony, documentation, or other information, or other evidence. And then it says that after that is submitted, the judge weighs that evidence and looks at the factual conclusions and makes a determination. When, in Rojas, the court pointed out that when the underlying record of conviction is being analyzed, you are not considering the underlying behavior of the alien. Rather, you are looking at what the alien was convicted of. And so, in that circumstance, it doesn't make sense to say that the alien has the burden to demonstrate a legal question. I mean, the legal analysis would control here and either the record of conviction identifies the control substance as defined by the federal schedules, or it doesn't. So is the Ninth Circuit in bank and younger's holder just completely confused? Your Honor, the Ninth Circuit decision, only two of the 11 judges actually agreed with the end result. Five of the judges found that there was the categorical approach applied. And that analysis applied because it was an aggravated felony was the underlying basis. And then four of the judges found that the alien should be able to submit evidence outside the record of conviction in order to meet their burden. But a majority of them decided that the burden was on the petitioner in that case, right? Yes, a majority decided that it was a burden. And a separate majority found that the categorical approach applied. Even if there's a dispute as to what should be proven, isn't the petitioner always have the burden in every one of these cases to establish entitlement to relieve? Well, again, I think if you look at the burden-approved statute that switches this burden for relief applications to the alien, it's talking about factual questions. So if the alien has to demonstrate extreme hardship or a specific amount of time residing in the United States, those are all factual questions that the alien can submit evidence, testimony, that does ways that and makes a factual determination. When the underlying question is whether the record of conviction identifies the only thing that the alien can possibly do is produce the record of conviction and either the record of conviction identifies the actual substance or it doesn't. Now, how do you deal with what would seem an asymmetric fall out for the government here? Yes, right. If in Rojas, we say to them, hey, in conclusive record, you lose when you've got the burden-approved. And then we work to say, in conclusive record, you still lose when the petitioner has a burden-approved. Doesn't that strike you as odd? Well, I guess I would respond to your words, Judge. The first, the burden-approved for the government to establish a moveability, that's not the same thing under the 1229C4 switching of the burden-approved. I mean, that question is addressing factual issues. What's this, isn't it precisely the same? There's a two-step process. It's set forth in 1227 when the removability is the issue. The government bears the burden. And an inconclusive record means they lose. That's Roas. Here, it's the exact same statutory issue, 1227. But the real ID act puts the burden on your client. There's an inconclusive record. Why doesn't that mean the petitioner loses? Just like it means the government loses when the burdens on them to demonstrate removability. Well, again, the underlying statute, when it talks about how the petitioner satisfies their burden-approved, that does not apply to the government. So in other words, the government cannot produce testimony to establish a moveability. The government cannot provide documentation or other information to establish a moveability. The government can only provide the record of conviction to establish a moveability or not. And the underlying analysis that the evidence must indicate clear and convincing that the alien is removable. When an alien demonstrates that the record of conviction is inconclusive, that does not mean they win their case. Because as the government acknowledges, the underlying burden-shifting applies only in cases where the alien is applying for relief from removal. Relief from removal almost exclusively is a discretionary form of relief as the court recognized in Monkrieg. And so if, in fact, the record of conviction is inconclusive, but the underlying factual basis for the plea is, can be discerned based on testimony, police reports. The judge would not be constrained from considering that in the exercise of discretion. If we agree with you- Yes, Your Honor. What do you want us to do in this case? I want this case remanded to the BIA. So in fact, the decision- What would the BIA, what position would this case then be in front of the BIA if we remanded it? Well, if the court orders that either the criminal statute does not relate to control substances, it would be one option. And then that leaves petitioner with only a single offense and we would be able to show, attempt to show that the other conviction was involving 30 grams or less and would qualify for the Louis Vu涂 under 1182H. If the court sends it back addressing the second question and says that underlying record of conviction is silent, it would result in a similar disposition where they would say the record is silent, it must go back to the immigration judge to give the judge a chance to review whether he meets the exception under 1182H. And what would the judge review in that circumstance? Well, the 1182H allows for a circumstance to the inquiry that can- that where the court can look at whether the underlying conviction involved 30 grams or less of marijuana. So if the underlying conviction, they only would be able to present testimony to try to meet their burden in that circumstance. But on the paraphernalia issue. Well, in this case, the paraphernalia, the substance is not identified, the paraphernalia is not identified. And so it would be legally that it does not implicate the inadmissibility ground for that paraphernalia conviction. It would only be the second marijuana possession that would be implicated. Okay. Thank you. We'll have you back on the bottle. Yes. Mr. McAster. I have three in your honor. May please the court. I'm Anthony Nicashe, I represent the Attorney General in this case. Judge Fisher, you're exactly right. The issue that is right before this court, in this particular case, is whether or not the alien has met his burden proof to show eligibility for relief on the statute and under the regulation by showing an inconclusive record of conviction. There are certain things that are not in contention. I think the court's already pointed that out. One is clear that the petition is removable from the United States. The overstated is visa and there's no contention. Two, the petition has the burden to establish eligibility for relief. Petition to concede that in his brief on page 14 through 60. The acknowledges that burden is on him. So the only thing that this court needs to decide within the context that Rojas framed is whether or not this alien has the burden to show what the substance was that the control-pathernic conviction relates to. But don't we have to get through Rojas step one? Well, I think, I think, I mean, it seems to me we have to do the related to analysis. Yes, Your Honor, and I think Judge Jordan is right. The related to analysis is there, and in some ways, Barom almost assists in the relate to because it's clear that it talks about how the peripinative statutes are related to controlled substances. Then answer your opposing counsel's argument that sure Barom says parapinative is related to controlled substances, but the Virginia statute specifically speaks of controlled drugs and the definition mirrors the FDA. Which Barom says, you can't reach out to under a categorical approach. Doesn't work. It won't match up. Right. I think in answer to that question, there's a couple of things. I think that Rojas is straight, it's now spoken on the first prong. It says this is related to. And Barom says, took a look at parapinative statutes. parapinative statutes is the word that the Barom used. It says it relates to a controlled substance. And I think the language is any law related to a controlled substance reaches those laws that do not require the actual involvement of a controlled substance. Sure. And I'm trying to get you to speak directly to your learned friends specific argument that Barom is an on point because we're talking about a controlled drug, quote unquote, defined in the Virginia statute. And that's different, really different than controlled substance. That's the argument that's being made to us. So that's the argument I'd like you to meet. Yes, you're on an all in two parts. First in Barom, what was critical in that analysis, and they mentioned it twice in Barom, is that the words controlled substance were never in the federal statute that was under issue here. Here, there is a term, dangerous, I mean, controlled, dangerous substances within the Virginia statute. That's the first point. The second point is Barom also recognizes that there's an overlap between controlled substances and controlled drugs. Barom recognizes that. And what Barom did, and you must remember that Barom was a removable case. They said that that nexus is too tenuous for deportability purposes. Didn't talk about removal purposes. Talk about removable purposes. And that connection, that nexus, which they recognize that there is overlap. And I think the term, you're making a distinction between deportability and removable. No, deportability, I'm sorry, deportability and removable ability are one and the same. Right. The distinction I'm making is between removable ability and deportability in the same butt and relief. All right. Gotcha. And Barom said that tenuous connection, yes, they recognize there is overlap. And I think the example they use is oxycontin in Barom. There is overlap, but that, that is too tenuous for removal ability. They use the word deportability, but it's the same thing. Right. Here, we're in the relief stage. I think as Judge Fisher pointed out, that is critical. And that's what Rojas addresses, the inconclusive record. And that burn is squirrely placed on the alien. Like the ninth circuit, Ombonc and Young placed it there, the tenth circuit in Garcia placed it there, and the fourth circuit in Salon placed it there. That's the second circuit, didn't it? The second circuit has not. And what's interesting about the second circuit is that initially, Young, when this case was originally breached, Sandeval Luau followed Martinez in the second circuit. However, on Reloq, Ombonc, they decided that that that analysis by the second circuit was flawed. So they looked at their own case, though, that relied on Martinez and said, we're going to find that the inconclusive record does not satisfy the alien's burden on the statutory or regulatory burden he bears. Does Moncreef have anything meaningful to say about what's going on in this case? The government would say no, Your Honor, because Moncreef, again, was a removable case. So they never analyzed the relief statute, and they never analyzed the regulatory provision on burden of proof. It was not a relief case. So they didn't do the analysis that the ninth, the fourth, and the tenth did on this particular statute. And the uniqueness and removal proceeds on the shifting burden that the fourth circuit explained nicely in their decision. OK, and if you would, you want to take on again, I know you hit it in your answering brief, but in the reply brief, the petitioner again goes to Thomas, our decision in the United States versus Thomas, and it says that we held that because the record was inconclusive, that Thomas had met his burden of proof and was eligible for cancellation of removal. What's is that with Thomas? How what's wrong with the line argument that they've made? I think there's two things about the Thomas decision. First, and that has such limited applicability here. First of all, the Thomas court did not analyze the statute nor the regulatory burden in depth. They do mention it. They said the burden is in, but that's it. They must have arrived at that conclusion. There's no other way they could have. Well, obviously they did arrive at that conclusion, but whether the analysis is proper now under the Rojas decision is leaves open the question on whether that is applicable in the pure context of relief from removal in this particular case. And the particular statute that is involved, which is a control pattern, a value statute. And I think that analysis is controlled first part to relate to under Rojas. So it simply has to identify the substance. And as George Jordan pointed out, it seems to be that if Rojas places the burden on the government, the removable proceedings, in other words, we cannot show with a conclusive record of conviction what the substance was, then that alien is not removable. We lose. The inverse should be true for relief. I may have cut off your answer to Judge Jordan's question. So you're distinguishing Thomas by saying that they didn't engage in an analysis. They just made a concursory statement. I think, and that Rojas in effect, there were rules. I think in part, it's certainly the first part is true that the mention of the statute, and I'm not sure that you mentioned the regulation in Thomas, was a cursory analysis. And they looked, they went right to the categorical approach in Thomas, which the board used in finding that that particular offense and promise, believe it was distribution of marijuana, was not categorically a crime. And I think Rojas has changed the landscape on that, especially, and how it relates to a paraphernalia statute, and the related to analysis, which is different than what Thomas looked at. I want to read you something from Thomas. I have you respond to it. This is the court on page 146. We cannot definitively establish the Thomas actually admitted during the guilty proceedings that he sold or exchanged in marijuana, et cetera, et cetera. And then we go on and say, it's equally plausible his admission of guilt-less conduct, which would not cause to diapethetical federal felony. I mean, it certainly looks here as if we're trying to figure out something about an inconclusive record. And in the end, we say, will Grant Thomas's petition for review? So, why is this case not Thomas, even though Rojas has said some things about how we're gonna approach something analytically related to versus categorical approach, rejecting that piece of Thomas, how the burden falls seems to be us saying the burden falls on the government. Why are we not bound by that even after Rojas? Okay, you're on, I guess the best way I can explain that is that in Thomas, the court was looking at a very specific finding that the board made. And they looked at it and said, no, boy, you're wrong, so categorically. So now we can't tell it conclusively. And they didn't really address the burden in Thomas. They didn't look at how that shifts within the paradigm of the immigration proceedings. I guess what I'm trying to get, and I think this is, I don't wanna put words in, Judd Circus mouth, but what he was asking when I'm trying to draw you out on is, how are you distinguishing Thomas on this crucial point? Implicitly, if not explicitly, we put the burden on the government in Thomas. Wouldn't you agree? I think you could be read that way, but I think you could be read it another way, because we are saying it's inconclusive and then saying government you lose. Petitioner's petition is granted. How do you read it other than that? I would say that within Thomas, that the analysis on the shifting burdens was not fully developed. And I think the Rojas has now called into question with it's on the very similar statute, a paraphernalia statute. It's certainly, Rojas certainly cashiers the categorical, modified categorical approach that was employed in Thomas. But how does it speak to the burden of proof? It does, Thomas or Rojas? Rojas really doesn't speak to the burden of proof except from the government's standpoint. And just arguing, inversely, now that the burn is on the alien, Rojas the burn is on the government. Here the burn's on the alien. It's a paraphernalia statute. Any conclusive record you cannot identify the substance, cannot identify in Rojas, you cannot identify it here. And I think that changes the paradigm on how Thomas is viewed in the relief standard now that Rojas has come out of law. So if I'm hearing you right, you're saying, if Thomas put the burden implicitly on the government, Rojas implicitly puts the burden back on the petitioner. Yes, well, not the, I think Thomas recognizes the burns on the alien, but says it's inconclusive because it says, much he could be and is in much he couldn't. So they have to you satisfy your burden alien. So I think that they, while they say it's on the burns on the alien, I think they keep it there, but they don't really look, there is some shifting there on it. And I think Rojas has called it to, question implicitly, probably the best term to use on whether or not that's still accurate. Thank you, Rojas. All right, thank you, Mr. Nacastra. Mr. Munech. Yes, like I just, in terms of the young beholder decision, the ninth circuit panel currently addressing the Almanza case has asked for supplemental briefing as to whether or not Monk Reef has overruled the decision, the online decision in young beholder. How could it have done that? Well, if as the government says, it's a removable case, then I'm able to do with relief. That wasn't even an issue. Wasn't even brought up by the Supreme Court. I wouldn't agree with that characterization. In Monk Reef, the person was also looking at an aggravated felony, purposes of relief of cancellation. So I wouldn't characterize it that way. And what the Supreme Court said critically in Monk Reef is that this analysis is a legal question. And they also do not address the burden of proof, as just like the court in Thomas did. And I think the reason why there's this confusion is that both the third circuit, the Thomas panel and the Monk Reef court recognize that it doesn't make sense to speak of burden of proof in terms of a legal question as to what the record of conviction shows. And alien by the statute is not allowed to submit evidence outside the record. And only can submit the record of conviction. So if there's any burden that applies, we would only be a burden to produce the record of conviction. And the underlying decision in, well, and then Thomas as well is important to recognize that again, that that was also a relief case. It was not, I mean, yes, it was removable as an aggravated felony, but as Kishner pointed out in the reply brief, that doesn't really help the government very much because what happens is that instead of saying, does it help the government, here's what I understand Mr. Kastery is saying. I understand him to be saying to us, look, Rojas cleared up any confusion there was about what the consequence is of failing to clear up a murky record when the burden of proof is on the government and you don't clean up a murky record, you lose on your removable case when the burden is on the petitioner and you don't clean up a murky record, then you lose because the burden falls there. And Rojas makes that at least implicitly clear and that addresses Thomas if I understood his argument, right? What's wrong with that assertion? In mom grief, the Supreme Court overturned the BIA decision in Rodriguez that specifically said, an alien has the burden to show that the no remuneration and the minimum amount of marijuana exceptions apply in their case. And the Supreme Court rejected that, even though those weren't elements of the offense, they were sentencing factors. So you're focusing, you're focusing exclusively on Rojas' problem one. That's, if I understand you right, that's gotta be your argument because you keep distancing yourself from the government's assertion that there's a murky record here by saying, I guess it's a legal question we're never gonna get to the murky record. You just wanna look at that related to and you just wanna make an illegal judgment about whether related to covers the Virginia statute. If I understood you correctly, I might have spoken your honor. The Court can certainly get to the second question. If it's fines at the statute relates to control substances, it should proceed to step two in Rojas and determine whether the record of commission identifies. And if we get to that, do you concede that if the record's murky and the burdens on your client, that your client loses? If the court interprets the burden in the way that the government is suggesting, then yes, but that's not the way the burden of proof should be interpreted here. And again, the reason for that is the same reasons why the categorical approach was developed in the first place. In this case, there is no record of conviction because the state of Virginia does not come off of Virginia, does not create a record of conviction. Well, how does the burden of proof ever lie on the defendant, on the excuse me, the petitioner, I'm having a hard time understanding how you ever bear the consequences of a failure of burden of proof under the analysis you're proposing to us. As the government always loses, unless I'm misunderstanding it. Anytime there's a factual question, if the alien doesn't meet their burden, they would lose. And isn't that exactly the issue that we would be confronted with here? If we were decided, if we were to decide at prong one, that this relates to the controlled substance, and therefore, satisfies step one. And now we're asking the question at step two, what's the nature of what actually happened here? I wouldn't characterize step two as I weigh your honor. I mean, the court in Rojas says we're not concerned with underlying acts of the convicted person. We are solely concerned with what they were convicted of, and the reasons for that limitation. I apologize, you're correct. What was he convicted of? He's convicted of an of a drug, paraphernalia offense, and you, it feels like you want to both ways, and my colleagues will just indulge me for a second, because I'm just having a hard time understanding how your conception of the burden of proof works. You seem on the one hand to be saying, it's just when you get to that step, it's all categorical and we win. But if that's the truth, it seems to me to drain all meaning from the idea that there's a burden of proof at step two as well. And if that's the case, what are we talking about, burden of proof at all? What does the statute mean? Well, I guess two parts. One, I don't think that the mailing necessarily wins if the record of conviction is unclear. Well, as I mentioned before, yeah, don't run off to its discretionary. That seems to me to be a complete sideline. Stick with me on what I'm trying to ask, if you understand it, if you don't, and my colleagues don't deck me for asking it again, answer the question I'm attempting to push. Sure. Again, I would look at section 1229AC4B, which talks about how the alien meets the burden of proof. And that shows what type of questions the connoisseurs intending an alien to have the burden of proof on. And it doesn't occur to you that those sorts of questions are things like what were you convicted of. That's correct, Your Honor. Can I be convicted? I believe limits the inquiry to the record of conviction. And the alien is not allowed to present testimony or evidence as to that conviction. They can only look at the record of conviction. It doesn't your approach by necessity? Get us to the point that under the Virginia Parapholy statute, there can never be a finding of related to. Well, in this case, the control paraphernalia statute is separate from Virginia's drug paraphernalia statute. Right. Virginia also has a control paraphernalia statute. I understand, but doesn't it get us to that result that under that control paraphernalia statute you can never have a related to case? Well, if it's because you work the burden through the categorical approach. And whether you use the categorical, the formal categorical approach and the modified categorical approach, we're gonna get to the point where you can say summer covered and summer aren't. And therefore, Virginia conviction can never for control paraphernalia's conviction can never be related to conviction. And less the record of conviction identifies the substance. So in effect, the conviction would be in a way legally infermed. Yes, Your Honor. And so the burden approved doesn't matter. Exactly. And that's the thing about speaking of the record as being inconclusive. I think that's really the wrong word to use. I think the correct word to use is that the record is indeterminate. When you say inconclusive, it seems like there is a possibility of determining if but for additional evidence. But in fact, under this legal analysis, if the record of conviction doesn't identify, as a legal matter, the alien hasn't been convicted of that offense. I mean, it's cabin in that way, but that's the benefit or that's the requirement of the categorical approach, which again, doesn't apply here in terms of comparing to a generic offense, but does apply in a sense that you're only looking at the record of conviction because the statute uses the phrase. But it means we go through some steps that aren't in the statute. Well, right. I mean, I believe that the whole point of establishing the categorical, modicative approach in the first place, I mean, was to prevent unfairness of having an alien held liable for something they didn't necessarily plead guilty to for administrative efficiency and to make sure that the alien is not prejudiced by having to rely on outdated or un-existent evidence. Thank you. Okay, thank you very much, Mr. Mayor. We thank both Council for the job very well done. And we will take this case under advisement. Thank you. Thank you very much. All right. Good man, we're done. Good man, we're done. Thank you. And the nice circuit is concerned. I think there's a lot of things more to do on that. I think there's a lot of things to do. But they keep going