[00:00:00] Speaker 04:
Ms.

[00:00:00] Speaker 04:
Hong is pro bono?

[00:00:02] Speaker 00:
Yes, your honor.

[00:00:03] Speaker 04:
I've seen you before.

[00:00:04] Speaker 04:
Yes, your honor.

[00:00:05] Speaker 00:
I've seen you.

[00:00:06] Speaker 00:
Indeed.

[00:00:07] Speaker 00:
It's always a pleasure.

[00:00:08] Speaker 04:
Thank you.

[00:00:10] Speaker 00:
Well, good morning.

[00:00:12] Speaker 00:
May it please the court?

[00:00:13] Speaker 00:
My name is Kori Hong.

[00:00:15] Speaker 00:
My co-counsel is Laura St.

[00:00:16] Speaker 00:
John.

[00:00:16] Speaker 00:
We are from the Florence Project.

[00:00:18] Speaker 00:
We represent Mr. Jose Alcocer Vargas.

[00:00:23] Speaker 00:
I will reserve two minutes of my time for rebuttal.

[00:00:25] Speaker 00:
I will watch the time.

[00:00:27] Speaker 04:
Very well.

[00:00:28] Speaker 00:
This case appears like a complicated chemistry issue.

[00:00:33] Speaker 00:
But in reality, it involves a simple legal question that this court can and is compelled to easily answer.

[00:00:41] Speaker 00:
We have had an evidentiary hearing.

[00:00:44] Speaker 00:
Everything that the court needs to resolve this issue is in the record.

[00:00:48] Speaker 04:
So you just view this as a failure of proof by the government, right?

[00:00:52] Speaker 00:
I'm sorry, what's that?

[00:00:52] Speaker 04:
You just view this as a failure of proof by the government.

[00:00:55] Speaker 00:
I see it as a legal issue, a number of legal issues that both other circuits and even the BIA itself and Felix Figueroa have resolved in Mr. Alcocera's favor.

[00:01:07] Speaker 00:
Starting with the federal analogs, the De Campo footnote was incorrect to suggest that the Federal Analog Act captures every drug that is not listed on the Controlled Substance Act, known as the CSA.

[00:01:22] Speaker 00:
A federal analog is a term of art.

[00:01:24] Speaker 00:
It has two elements.

[00:01:26] Speaker 00:
The analog has to have a similar chemical structure, and it has to have a similar pharmacological effect as a CSA drug.

[00:01:33] Speaker 04:
But in this case, counsel, you may be an expert in these isomers.

[00:01:39] Speaker 04:
I was learning a lot reading about this, and I still don't know as much as I need to know, but it seems to me that no

[00:01:47] Speaker 04:
court in this proceeding has actually analyzed the impact on the body of the isomers involved.

[00:01:56] Speaker 04:
Basically, we have no record.

[00:01:59] Speaker 04:
Your client brought it up before the IJ.

[00:02:02] Speaker 04:
It was never contested by the government.

[00:02:04] Speaker 04:
The government didn't talk about it for the BIA.

[00:02:07] Speaker 04:
So we really don't have a record.

[00:02:08] Speaker 04:
So what you're asking us to do, just based on chemical descriptions,

[00:02:16] Speaker 04:
That's it.

[00:02:17] Speaker 04:
There's no analysis of how this works or the paraphernalia related to methamphetamine.

[00:02:24] Speaker 04:
Is that your position?

[00:02:26] Speaker 00:
My position is the one shared by the Seventh Circuit precisely on methamphetamine and six other circuits.

[00:02:32] Speaker 00:
It's not about chemistry, it's about statutes.

[00:02:35] Speaker 04:
But the statute in Indiana was different than this one.

[00:02:39] Speaker 00:
It also regulated optical and positional isomers.

[00:02:43] Speaker 00:
Arizona regulates optical and positional isomers.

[00:02:47] Speaker 00:
And what's significant, the Felix Figueroa case from 2015, it's cited in the supplemental brief.

[00:02:54] Speaker 00:
It's a published case from the BIA.

[00:02:56] Speaker 00:
Footnote one.

[00:02:57] Speaker 00:
says that the DHS and there the pro se party agreed that positional isomers exist.

[00:03:05] Speaker 00:
Footnote two is significant, because footnote two cites the second, the seventh, and the eighth, and says under those circuits, our case would be done, because the statutory over breath is enough.

[00:03:17] Speaker 03:
So your argument is the fact that positional isomers exist is a legal matter that we could resolve?

[00:03:23] Speaker 00:
Well, once positional isomers exist, then Lopez Aguilar,

[00:03:28] Speaker 00:
in the in the Ninth Circuit says statutory over breath is enough.

[00:03:32] Speaker 03:
Okay, well answer the first question though.

[00:03:34] Speaker 00:
Yes, well it has been resolved by the DHS and the BIA at this point and the Seventh Circuit that positional isomers exist and in this record... As a legal matter we have to accept that legal isomers exist.

[00:03:48] Speaker 00:
Yes, and we had an expert declaration in this record

[00:03:52] Speaker 00:
which is found at 276.

[00:03:55] Speaker 03:
The Seventh Circuit had a foot... What do we do with the Chenery line of cases that says that, you know, us courts cannot substitute the judgment of agencies?

[00:04:05] Speaker 03:
Since the BIA never found this question, how are we supposed to do that?

[00:04:09] Speaker 00:
Well, under the BIA decision, they recognize that only CSA substances at number three are those that can trigger deportability.

[00:04:21] Speaker 00:
Now, what the BIA did is that it analyzed geometric isomers, which is an argument that Mr. Alcosar never advanced.

[00:04:28] Speaker 03:
So the BIA never found positional isomers, correct?

[00:04:31] Speaker 00:
Well, not in that case, but in the published case from 2015, footnote one, the BIA says, yes, positional isomers exist.

[00:04:41] Speaker 00:
We have the record that exists.

[00:04:42] Speaker 00:
The DHS does not dispute it, either in the BIA.

[00:04:46] Speaker 00:
It never disputed it.

[00:04:47] Speaker 00:
At the immigration court level, it never disputed it.

[00:04:50] Speaker 00:
And in this court, it does not.

[00:04:52] Speaker 03:
Is that binding that old BIA position?

[00:04:55] Speaker 03:
Is that binding on the panel that's in this case?

[00:04:57] Speaker 00:
Well, yes, it is.

[00:04:59] Speaker 00:
And also, we have the Seventh Circuit recognizing.

[00:05:02] Speaker 00:
That's not binding at all.

[00:05:03] Speaker 00:
Well, Lopez Aguilar said that if you just look at the statutory text alone, as long as it's not a logical impossibility, that will be enough.

[00:05:13] Speaker 00:
And Lopez Aguilar addressed whether a robbery by consensual taking

[00:05:18] Speaker 00:
would be overbroad to the generic offense.

[00:05:20] Speaker 03:
So that's only the first question.

[00:05:21] Speaker 03:
The second question, as a factual matter that I see it, is whether or not positional isomers have a potential for abuse.

[00:05:27] Speaker 03:
And how are we supposed to find that as a matter of law, that that's true?

[00:05:31] Speaker 00:
That's a factual question that no one has ever asked.

[00:05:34] Speaker 00:
The BIA has never addressed it in any decision, this case or any others.

[00:05:37] Speaker 00:
Well, exactly.

[00:05:38] Speaker 03:
So how are we supposed to do that?

[00:05:39] Speaker 00:
Because all you have to do is go affirm what the Ninth Circuit says, that if there's statutory over-breasts

[00:05:46] Speaker 00:
That alone is enough to meet, that is enough to show over-breadths and then under the portability context, it's also indivisible.

[00:05:57] Speaker 04:
You know very well, given your experience, we deal with categorical analysis and modified categorical analysis in so many ways, in so many settings.

[00:06:08] Speaker 04:
But this one's different.

[00:06:10] Speaker 04:
This one's different, because we're talking about chemical compounds, very significant scientific issues, and nobody really analyzed what the impact was on the body.

[00:06:23] Speaker 04:
And of course, part of what the statutes deal with here is the impact on the body.

[00:06:28] Speaker 04:
I share what I believe my colleague's concern is this is a serious issue.

[00:06:34] Speaker 04:
But we're not scientists.

[00:06:36] Speaker 04:
I'm not.

[00:06:37] Speaker 04:
Maybe my colleague from Texas is because he has an engineering degree.

[00:06:40] Speaker 04:
But I'm not a scientist.

[00:06:42] Speaker 04:
I don't purport to be able to analyze the technical aspect of it.

[00:06:46] Speaker 04:
And I don't think I'm supposed to be doing that.

[00:06:48] Speaker 04:
I think it's supposed to be done by experts in a hearing so they can determine whether, in fact, there is a categorical match.

[00:06:56] Speaker 04:
If not, whether it's a modified because it's divisible.

[00:07:00] Speaker 04:
I don't see how we can do that.

[00:07:01] Speaker 04:
How can we?

[00:07:02] Speaker 00:
Well, the immigration courts surely cannot.

[00:07:05] Speaker 04:
They can do fact-finding.

[00:07:06] Speaker 00:
Well, Dana Marks noted that an immigration court is traffic court for the death penalty.

[00:07:12] Speaker 00:
These are three... What did you call it?

[00:07:13] Speaker 00:
What's that?

[00:07:14] Speaker 04:
What did you call it?

[00:07:15] Speaker 00:
The traffic... The traffic court for the death penalty.

[00:07:17] Speaker 00:
These are three-hour hearings.

[00:07:19] Speaker 00:
The federal rules do not apply.

[00:07:21] Speaker 00:
They do not have to apply at all, which is why the Seventh Circuit, the Eighth Circuit, the Second Circuit, the Eleventh Circuit, the Eighth...

[00:07:29] Speaker 00:
And the Third Circuit have all said, we look at the text.

[00:07:34] Speaker 00:
If the statutes for drug offenses, if they're over broad to the federal definition of what's in the CISA, our work is done.

[00:07:45] Speaker 04:
It's your contention that one can do that, as my colleague referred, as a matter of law.

[00:07:52] Speaker 04:
You can simply look at the isomers involved and you can say, oh, that's over broad.

[00:07:56] Speaker 00:
That is what Malui does.

[00:07:58] Speaker 00:
That is what Moncrief does.

[00:08:00] Speaker 00:
That is what in the citation of the opening reply and supplemental brief of what the six circuits do, they simply say, we look at the statute.

[00:08:08] Speaker 00:
We do not need to look at anything else.

[00:08:10] Speaker 00:
And that is the problem.

[00:08:11] Speaker 00:
Ms.

[00:08:11] Speaker 02:
Holm, can I interrupt you and make sure, do you accept that this court's jurisdiction is limited to questions of law as opposed to questions of fact?

[00:08:21] Speaker 00:
Yes.

[00:08:22] Speaker 00:
The court also has jurisdiction of application of law to fact.

[00:08:26] Speaker 02:
And so let me walk through my reading of what the BIA did, and tell me where you think it made a mistake of law.

[00:08:32] Speaker 02:
First, it looked at the statute of conviction, Arizona Revised Statute 133415A, and found that it was overbroad, because it included several substances that are not federal.

[00:08:44] Speaker 02:
You agree that was correct?

[00:08:46] Speaker 00:
Of which statute?

[00:08:49] Speaker 00:
Arizona revised statute 13 34 15 a the statute of conviction you read the BIA correctly found that over broad that that convictions actually drug paraphernalia because he was caught with a baggie and there was some residue on it right but the definition of dangerous drug is at a different broader it's not 13 it's not 34 15 a it's a different statute

[00:09:12] Speaker 02:
OK, fair enough.

[00:09:13] Speaker 02:
But we're concerned here with the definition of the term dangerous drug.

[00:09:17] Speaker 00:
Correct.

[00:09:17] Speaker 02:
That's what makes it overbroad.

[00:09:19] Speaker 02:
Correct.

[00:09:19] Speaker 02:
OK.

[00:09:20] Speaker 02:
And so then the BAA looked at the Shepard documents and found that they narrowed the basis of your client's conviction to methamphetamine.

[00:09:29] Speaker 02:
And was that an error of law?

[00:09:31] Speaker 00:
Yes, because what they did, they said they started before by saying, we look at the overbreath.

[00:09:36] Speaker 00:
And they said, because geometric isomers do not exist, citing to the

[00:09:42] Speaker 00:
Ninth circuit case they said then this is this is not well Okay, but the statute defining the types of drugs that can underlie a paraphernalia conviction included Narcotic drugs dangerous drugs marijuana or peyote correct and that's what made it over broad and because dangerous drugs includes methamphetamine and the BIA's errors that they suppose geometric isomers don't exist they ignored a

[00:10:06] Speaker 00:
that positional isomers do exist.

[00:10:07] Speaker 02:
Well, I guess what I'm asking is why does, what did the BIA do wrong in looking at the shepherd documents and saying, it didn't say this, but it said the shepherd documents narrow the basis of your client's conviction to methamphetamine.

[00:10:23] Speaker 02:
And true, it didn't address positional isomers, but is that an error of law given that positional isomers were never mentioned in the shepherd documents?

[00:10:31] Speaker 00:
Yes, because he raised it to the, he had an expert opinion, he raised it to the IJ, he raised it to the IA.

[00:10:37] Speaker 02:
Right, but you could have an expert opinion that tons of drugs exist, but the Shepard documents narrowed your client's basis of conviction to methamphetamine.

[00:10:45] Speaker 02:
And was that an error of law?

[00:10:46] Speaker 00:
Yes, because you start out at the categorical step one.

[00:10:50] Speaker 00:
And if step one, if there's statutory overbreath, you then go to step two to ask whether it's indivisible.

[00:10:56] Speaker 00:
The BIA skipped over that step.

[00:10:58] Speaker 02:
Well, this court's already resolved that.

[00:11:00] Speaker 02:
Romero-Milan held that the statute is divisible by drug type.

[00:11:04] Speaker 02:
So that can't have been an error of law.

[00:11:05] Speaker 00:
No, it is.

[00:11:06] Speaker 00:
Because then within the drug type, that's where they ignored state of Pekinia, which was cited to both the IJ and the BIA.

[00:11:13] Speaker 00:
And state of Pekinia in Arizona, there the defendant said, hey, you didn't prove whether it was an L isomer or D isomer.

[00:11:22] Speaker 00:
And there the state court said, we don't care because all isomers in Arizona

[00:11:28] Speaker 00:
are criminal, it does not matter which isomers are involved in your offense.

[00:11:33] Speaker 02:
That is the error.

[00:11:35] Speaker 02:
But are all positional isomers of methamphetamine?

[00:11:38] Speaker 02:
Were those charged against your client?

[00:11:39] Speaker 02:
Or was he charged with methamphetamine?

[00:11:41] Speaker 00:
He was charged with methamphetamine.

[00:11:43] Speaker 02:
But as a statutory matter, that's different than an isomer of methamphetamine, right?

[00:11:48] Speaker 00:
It's the same thing as Lopez Agriar.

[00:11:51] Speaker 02:
Let me ask you this.

[00:11:53] Speaker 02:
The definition of dangerous drug is what includes positional isomers, right?

[00:11:58] Speaker 00:
It includes methamphetamine, and methamphetamine includes positional and identical isomers.

[00:12:02] Speaker 02:
No, it doesn't.

[00:12:03] Speaker 02:
133406C1 is the clause that covers, as a dangerous drug, the following listed items and their positional isomers.

[00:12:15] Speaker 00:
Which includes methamphetamine.

[00:12:16] Speaker 02:
Right.

[00:12:17] Speaker 02:
So the position isomers are included as dangerous drugs, right?

[00:12:20] Speaker 00:
Correct.

[00:12:20] Speaker 02:
They're not included as methamphetamine, are they?

[00:12:23] Speaker 00:
No, but they are, but it is recognized.

[00:12:25] Speaker 02:
I just want to make sure I had your concession on that.

[00:12:26] Speaker 02:
And your client was convicted of methamphetamine, right?

[00:12:30] Speaker 00:
Yes.

[00:12:31] Speaker 02:
Not just charged with paraphernalia of a dangerous drug, but paraphernalia relating to methamphetamine, right?

[00:12:38] Speaker 00:
Well, yes.

[00:12:39] Speaker 00:
And under methamphetamine, then it can be indivisible.

[00:12:43] Speaker 00:
And that's where state Pequena comes in.

[00:12:45] Speaker 00:
And when you asked what the error was, the BIA never looked at the divisibility of methamphetamine.

[00:12:50] Speaker 00:
And state V Pequena.

[00:12:52] Speaker 02:
How is it statutorily divisible?

[00:12:55] Speaker 02:
What part of the statute makes methamphetamine divisible as opposed to a dangerous drug divisible?

[00:13:00] Speaker 00:
It's indivisible because methamphetamine can be defined by positional and optical.

[00:13:06] Speaker 00:
the federal definition has optical definition.

[00:13:10] Speaker 00:
And what's clear about the federal definition is that under both, um, under methamphetamine, both under the sentencing guidelines, there is a different sentence and a different conviction about whether the person possesses DMETH isomer or the LMETH isomer.

[00:13:25] Speaker 02:
And both of those are methamphetamine federally.

[00:13:28] Speaker 02:
And in

[00:13:29] Speaker 02:
to do.

[00:13:45] Speaker 00:
Yes, because this is that state which Arizona cases safety piquinha that only dealt with optical isomers It's set no it said that the state does not have to prove which isomers are involved because of optical isomers charged in that case No, your honor because as the court explained all isomers in Arizona are not only regulated, but they have the same

[00:14:07] Speaker 00:
sentencing consequence.

[00:14:09] Speaker 00:
In federal court, by contrast, DMETH has much higher sentencing than LMETH, which is why then in federal courts, the prosecution has to have evidence about whether it's the D isomer or the L isomer, because as Mathis says,

[00:14:27] Speaker 00:
The punishing consequences can prove whether it's an element.

[00:14:30] Speaker 00:
We know that the isomers have different elements in federal court.

[00:14:34] Speaker 04:
I'll let you save your time.

[00:14:35] Speaker 04:
You want to save the balance of your time?

[00:14:36] Speaker 00:
Yes, your honor.

[00:14:37] Speaker 00:
Thank you so much.

[00:14:38] Speaker 04:
Very well.

[00:14:39] Speaker 04:
Let's hear from the government.

[00:14:54] Speaker 01:
Good morning, your honors, and may it please the court

[00:14:56] Speaker 01:
Imran Zaydi for the respondent.

[00:14:58] Speaker 01:
The question before the court is whether Petitioner's methamphetamine offense in Arizona qualifies as a controlled substance offense for immigration purposes.

[00:15:06] Speaker 01:
Now the parties both agreed that the agency overlooked Petitioner's argument that Arizona's methamphetamine definition is overbroad because it includes positional isomers and accordingly that the agency... You agree that and I agree that the BIA didn't address positional isomers but why are you saying that that was an error of law?

[00:15:25] Speaker 01:
We're not saying, Your Honor, that that's an error of law.

[00:15:27] Speaker 01:
We're saying that that issue was developed by petitioner below and that the agency without question did not examine that evidence.

[00:15:34] Speaker 02:
Previously, the government moved to remand.

[00:15:37] Speaker 02:
That's right.

[00:15:38] Speaker 02:
And then in your supplemental brief, you argued that the court could affirm.

[00:15:41] Speaker 02:
Are you withdrawing your motion to remand?

[00:15:44] Speaker 01:
We're not withdrawing your argument.

[00:15:45] Speaker 01:
And in fact, our central primary argument, even in our supplemental brief, was consistent with our position in our

[00:15:51] Speaker 01:
answering brief which is that we do believe that remand is appropriate here.

[00:15:54] Speaker 02:
Is it an error of law for an agency to fail to address an argument that is not necessary to reach the results it reached?

[00:16:05] Speaker 01:
No, if it's not necessary.

[00:16:06] Speaker 02:
And is that what happened here?

[00:16:08] Speaker 01:
We do believe that it is necessary to understand what positional isomers are in order to conduct a proper categorical approach.

[00:16:16] Speaker 02:
Why?

[00:16:16] Speaker 02:
Was Alcazar Vargas charged with

[00:16:18] Speaker 02:
paraphernalia relating to a positional isomer of methamphetamine or was he charged with paraphernalia relating to methamphetamine Your honor he was charged with paraphernalia relating to methamphetamine right he wasn't charged with dangerous drug was he specifically says methamphetamine

[00:16:33] Speaker 01:
No, Your Honor, it was just methamphetamine.

[00:16:36] Speaker 02:
So then why did the BIA have to address any other drug that may have been a dangerous drug at all, whether it's an isomer of meth or Fentermine, which is a listed drug, which happens to be a positional isomer of meth?

[00:16:48] Speaker 01:
Yes.

[00:16:49] Speaker 01:
So I see that you've addressed some of these other Arizona methamphetamine cases, and that's where the Fentermine argument comes from.

[00:16:54] Speaker 01:
Our understanding of Petitioner's argument is that because the dangerous drug schedule defines meth as part of its general cross-reference in its isomer definition,

[00:17:03] Speaker 01:
to include optical positional and geometric isomers, that that's why those are part of it.

[00:17:07] Speaker 02:
But it's not what the statute says.

[00:17:09] Speaker 02:
It says dangerous drug includes the position.

[00:17:12] Speaker 01:
Oh, we agree.

[00:17:12] Speaker 01:
We certainly agree with that.

[00:17:13] Speaker 02:
It doesn't say that meth includes those isomers, does it?

[00:17:16] Speaker 01:
It doesn't.

[00:17:16] Speaker 02:
And he was charged with meth, right?

[00:17:18] Speaker 02:
Pardon me?

[00:17:19] Speaker 02:
Mr. Aquaservargas was charged with meth.

[00:17:21] Speaker 01:
He was charged with meth, yes.

[00:17:23] Speaker 02:
Let me put it this way.

[00:17:24] Speaker 02:
If the court were to deny the petition for a review on the basis that I've outlined, would the government defend that?

[00:17:31] Speaker 02:
Or if some sort of further review was sought, would you confess error?

[00:17:36] Speaker 01:
I suppose it depends on exactly what the court said.

[00:17:38] Speaker 01:
What would that holding look like?

[00:17:39] Speaker 02:
It said that the BIA committed no error of law by looking at the Shepard documents to narrow this conviction to methamphetamine, which doesn't have any broader meaning than the federal definition.

[00:17:50] Speaker 01:
We do agree that that is what methamphetamine means, but we don't think that here you can reach that determination without fleshing out what positional isomers of methamphetamine mean.

[00:18:00] Speaker 01:
And I'm trying to answer your question, Your Honor.

[00:18:03] Speaker 01:
I recognize that methamphetamine is listed by itself, and that the isomer definition is more broadly applied to dangerous drugs.

[00:18:12] Speaker 01:
But those isomer definitions do then apply to each substance, but you need to figure out which of those substances, in fact, have the different types of isomers.

[00:18:22] Speaker 01:
For instance, that definition includes geometric isomers, which we know do not exist for methamphetamine.

[00:18:27] Speaker 01:
It includes optical isomers, which we know do exist for methamphetamine.

[00:18:31] Speaker 02:
So part of what we're asking for on remand... Okay, but not every positional isomer of methamphetamine is methamphetamine, right?

[00:18:38] Speaker 02:
Like, one positional isomer of methamphetamine has a different name that's listed in the Arizona statute.

[00:18:43] Speaker 02:
It's called phentermine.

[00:18:44] Speaker 01:
Yes, and it's separately controlled... And Mr. Augusto Vargas wasn't charged with that.

[00:18:48] Speaker 01:
He was not.

[00:18:48] Speaker 02:
So we don't need to analyze whether phentermine is a CSA substance.

[00:18:52] Speaker 04:
Can I just ask a question?

[00:18:56] Speaker 04:
I just want to understand your excellent questions are probing what I'm interested in with the government.

[00:19:06] Speaker 04:
I find the government's position to be a little inconsistent here.

[00:19:08] Speaker 04:
We've got, if I understand it, three different cases.

[00:19:12] Speaker 04:
that have been remanded eventually from our court to do what you're asking us to do again.

[00:19:17] Speaker 04:
Which is to have the BIA or am I supposed to actually, the IJ, the traffic court as you refer to it, do the scientific analysis to determine whether you have a categorical match or not, whether it's divisible or not.

[00:19:35] Speaker 04:
My colleague, of course, has pointed out that we don't even need to get there.

[00:19:39] Speaker 04:
in order to have a resolution in this case.

[00:19:41] Speaker 04:
And yet the government in at least three other cases has said send it back.

[00:19:46] Speaker 04:
You're asking us to do it again.

[00:19:47] Speaker 04:
That seems rather inconsistent to me.

[00:19:51] Speaker 04:
My colleague may be absolutely right on point.

[00:19:54] Speaker 04:
You don't even get there.

[00:19:55] Speaker 04:
But what should we do with this now given the fact you've got three other cases sent back to resolve the very same question you're asking us in your original pleading to do?

[00:20:06] Speaker 01:
Well, Your Honor, respectfully, I'm not sure what the inconsistency is.

[00:20:09] Speaker 01:
We are asking this Court to do exactly what it has done in those three other cases in which the agency, like here, was not able to address arguments regarding the over-breadth.

[00:20:19] Speaker 01:
Well, they were.

[00:20:21] Speaker 04:
From my perspective, if this were a civil

[00:20:24] Speaker 04:
case this would be a failure of proof.

[00:20:26] Speaker 04:
You simply didn't prove up the elements.

[00:20:27] Speaker 04:
But because the petitioner in this case did raise the issue before the IJ about the isomers.

[00:20:34] Speaker 04:
But somehow this has gotten bollocksed up in some way.

[00:20:40] Speaker 04:
BIA didn't consider it and yet we're going to send it back.

[00:20:45] Speaker 04:
I guess that's the best solution from the government's perspective.

[00:20:50] Speaker 04:
I gather my colleague has pointed out a way that you could, in quotes, win, in quotes, without our doing that.

[00:20:56] Speaker 04:
Are you now advocating that we do what he has suggested?

[00:21:00] Speaker 01:
I'm not, Your Honor.

[00:21:00] Speaker 01:
There's never been our position that you can separate out methamphetamine from the isomers in the way that I believe Judge Barker is suggesting here.

[00:21:07] Speaker 01:
We do believe.

[00:21:09] Speaker 02:
It's your case.

[00:21:13] Speaker 01:
Your Honor, we're talking about the categorical approach, and I recognize that it asks us and the courts oftentimes to find ways out, but we're still interested in making sure the law is consistent and right.

[00:21:23] Speaker 02:
Can I do a pivot and ask you about, have you read the Seventh Circuit's opinion in Familia Rosario v. Holder?

[00:21:30] Speaker 01:
What is the petitioner's name there?

[00:21:32] Speaker 02:
Familia Rosario v. Holder from the Seventh Circuit.

[00:21:36] Speaker 02:
I'm not sure, but if you start describing me- Judge Williams wrote an opinion there saying that

[00:21:42] Speaker 02:
even if a state statute maybe includes some drugs that are not CSA, if the state statute defines what it prohibits with reference to the CSA drug, that makes the state conviction one relating to the CSA drug.

[00:21:58] Speaker 02:
So as applied here, even if positional isomers are

[00:22:03] Speaker 02:
Potentially what mr. Aquaservargas was convicted of despite never being mentioned in his shepherd documents Which you seem to just overlook, but even if that were the case His conviction would still relate to the CSA drug methamphetamine.

[00:22:18] Speaker 02:
Are you just claiming that argument here as well?

[00:22:21] Speaker 01:
No your honor I mean that is a version of what we did flag in our brief as they're relating to this was the last part of your brief

[00:22:28] Speaker 01:
Yes, in the answering brief.

[00:22:30] Speaker 01:
Yes, we think that the relating to argument at a minimum must suggest that if you are comparing a substance in a state schedule to the same substance on a federal schedule, then regardless of how those substances are defined by their isomers, then that must relate to that substance.

[00:22:45] Speaker 01:
And to be very clear about this argument, Mululli, which petitioner raises here as suggesting that that does not apply or as having foreclosed this argument, Mululli without question does not address that argument.

[00:22:56] Speaker 01:
Mululli was a very specific and different argument

[00:22:58] Speaker 01:
that the government had raised that just a general overlap in substance schedules can be enough, but that there does not need to be a specific link to the federal substance.

[00:23:07] Speaker 02:
But if that argument would show that there was no error of law, are you still supporting Remian for reasons of the Chenery Doctrine?

[00:23:17] Speaker 02:
Are you saying the BAA needs to decide that first?

[00:23:19] Speaker 01:
Yes, Your Honor, and I think the way that we framed it in our position here is that

[00:23:23] Speaker 01:
Fact-finding would be the first way to resolve this, because we might not even need to get to the relating to argument if positional isomers don't exist, which is still on the table.

[00:23:31] Speaker 02:
Well, if the relating to argument's right as a matter of law, you don't need to get to the fact-finding.

[00:23:35] Speaker 01:
That's true.

[00:23:35] Speaker 01:
That's true.

[00:23:35] Speaker 01:
It's a which comes first, Your Honor.

[00:23:37] Speaker 02:
I think we would- And chenery applies to issues of law like that?

[00:23:40] Speaker 02:
I mean, if we said the BIA did not make a mistake of law, but for a different reason, you would view that as requiring a remand under chenery.

[00:23:49] Speaker 01:
Again, it depends on what the specific question for the BIA to reconsider would be.

[00:23:53] Speaker 02:
You're relating to argument.

[00:23:54] Speaker 01:
Right, and I think separate even from the factual finding piece of this.

[00:23:58] Speaker 01:
We also asked for remand on that.

[00:24:00] Speaker 01:
So our position was, upon remand, after whatever factual findings are conducted, if the relating to argument becomes relevant, that we would like the BIA to be the one to address that first, of course, recognizing that this is a statute, an immigration statute, that the BIA administers.

[00:24:15] Speaker 01:
And so this Court has recognized the courts.

[00:24:16] Speaker 04:
What do you do with the fact that we, as a Court of Appeals, don't have jurisdiction to, if you will, rule on matters that the BIA did not consider?

[00:24:27] Speaker 04:
how does that impact our analysis in this case?

[00:24:31] Speaker 01:
I mean that's part of why we believe remand is appropriate here there's of course an exception for that for pure legal issues where you don't have a matter that is within the board's expertise so they're relating to honor they're relating to your argument for instance the board did not rely on that here and we would say that

[00:24:48] Speaker 01:
Though it's a pure legal argument, it is one that falls under the board's interpretation of a statute of interest.

[00:24:53] Speaker 04:
Do you think we would have jurisdiction to decide this case based on the related to language?

[00:25:01] Speaker 04:
Jurisdiction?

[00:25:02] Speaker 04:
Yes, your honor.

[00:25:03] Speaker 01:
I think we think the board.

[00:25:05] Speaker 01:
Do you think the BIA considered that enough for us to have jurisdiction?

[00:25:08] Speaker 01:
No, sorry.

[00:25:09] Speaker 01:
My point is that you would have jurisdiction because it's a pure legal issue, but my point is that it would be one that the board... Even if the BIA didn't consider it?

[00:25:15] Speaker 01:
Even if the board did not.

[00:25:16] Speaker 01:
It's a pure legal issue, but our point is that the board, we believe the board should get an initial shot at interpreting it because it is a statute that it administers, but we do believe that the court has jurisdiction to interpret statutes.

[00:25:28] Speaker 01:
Even under Chevron, that could have been, and other courts have resolved the relating to... The former Chevron?

[00:25:33] Speaker 01:
The former Chevron.

[00:25:34] Speaker 01:
The courts, even under a chevron framework, prior courts have looked at the relating to meaning specifically and resolved it without getting to step two.

[00:25:43] Speaker 01:
Just said, we know how to interpret the words relating to.

[00:25:45] Speaker 01:
We're just saying that the board should do that.

[00:25:46] Speaker 04:
You need to go for a sale on the low for bright.

[00:25:49] Speaker 04:
Pardon me?

[00:25:50] Speaker 04:
You need to go for a sale on the low for bright.

[00:25:53] Speaker 03:
Council, I thought under Chenery that we are only allowed to rule on that issue if the BIA has no discretion to rule on it.

[00:26:00] Speaker 03:
So that it's a harmless error if there's no choice but to go one route by the BIA.

[00:26:07] Speaker 03:
That's my understanding of Chenery.

[00:26:09] Speaker 01:
Your Honor, my understanding is that if the board had discretion, I don't believe it was even presented here.

[00:26:16] Speaker 01:
So for that reason alone, I think, and again, it's just like the factual findings here.

[00:26:20] Speaker 01:
We are talking about issues that both the immigration judge

[00:26:22] Speaker 01:
board never even had opportunity to address.

[00:26:26] Speaker 01:
I guess what I'm saying is it is a little bit complicated after Loper because we're not talking about a Chevron deference scheme, but this court has continued to recognize, of course, as Loper Bright itself did, that the agency has

[00:26:39] Speaker 01:
I'm not talking about the merits of the question.

[00:26:41] Speaker 03:
I just thought, you said that if the BIA doesn't reach a legal question, we can.

[00:26:46] Speaker 03:
I don't know if that's true under Chenery.

[00:26:49] Speaker 01:
Right.

[00:26:49] Speaker 01:
It does depend on the question, and we view this as a matter of pure statutory interpretation.

[00:26:53] Speaker 01:
This one involves facts, but the relating to argument does not.

[00:26:57] Speaker 03:
Can I ask one other question?

[00:27:00] Speaker 03:
So is the government's position that positional isomers do exist or do not exist?

[00:27:05] Speaker 01:
Your Honor, we are not in a position to answer that based on the record before this Court.

[00:27:08] Speaker 01:
And I want to address this directly.

[00:27:09] Speaker 03:
And then what's the BIA, the prior decision of the BIA?

[00:27:12] Speaker 03:
Is that not binding, apparently?

[00:27:13] Speaker 03:
It's not.

[00:27:14] Speaker 01:
Your Honor, respectfully, I think it's the Felix Figueroa decision, which was actually, I think, earlier this year.

[00:27:19] Speaker 01:
There, the BIA actually did not seem to follow what this, and that was, I would think, arose in the Ninth Circuit as well.

[00:27:27] Speaker 01:
It did not follow the approach this Court has counseled in cases like Rodriguez-Ganboa, which is, they said, if there are overbroad isomers,

[00:27:35] Speaker 01:
then you apply the realistic probability test regardless.

[00:27:39] Speaker 01:
If that had been the approach in Rodriguez-Gamboa, it would never have come out the way that it did.

[00:27:43] Speaker 01:
It would have just said, even geometric isomers, which don't exist, end of the ballgame if you can't satisfy the realistic probability test.

[00:27:51] Speaker 01:
So no, we don't believe that the board's position there on positional isomers or anything else.

[00:27:55] Speaker 01:
It governs in this case.

[00:27:56] Speaker 01:
We think that the board needs to follow what this court has done in Rodriguez-Gamboa, which is to say, when you reference isomers in a statute,

[00:28:03] Speaker 01:
you need to determine the significance of those isomers before you can conduct a categorical approach.

[00:28:09] Speaker 04:
So I gather the government's position remains.

[00:28:12] Speaker 04:
You want us to remand to the BIA and presumably to the IJ to make scientific findings, get input from both sides, and then ultimately decide whether it's categorically matched or whether it's divisible, whether it's a modified categorical analysis.

[00:28:30] Speaker 01:
That's right, Your Honor.

[00:28:31] Speaker 01:
That's the primary argument we believe, for all the reasons we pointed out in our answer and brief, that remand is appropriate.

[00:28:36] Speaker 02:
Can I just ask, as a matter of process, your motion to remand was filed some number of years ago.

[00:28:40] Speaker 02:
This is still the current position of the government.

[00:28:45] Speaker 02:
It's not just you're reiterating the position from a number of years ago.

[00:28:49] Speaker 01:
It is, Your Honor, because we briefed the case earlier this year.

[00:28:52] Speaker 01:
and made many of those same arguments.

[00:28:54] Speaker 01:
And, of course, a lot has happened in the ice summer world from when that motion to remand was filed in 2020 and now, but our general position remains the same and what this Court has continued to do.

[00:29:03] Speaker 02:
Do you think the fact finding before the BIA is constrained by evidentiary standards, or do you think the BIA would essentially be doing

[00:29:14] Speaker 02:
finding as to legislative facts as opposed to adjudicative facts.

[00:29:18] Speaker 01:
I believe it would be adjudicative facts and to be clear, it wouldn't be the BIA.

[00:29:21] Speaker 01:
It would be remanded to the immigration judge to conduct that fact-finding and accept more evidence.

[00:29:25] Speaker 01:
And we do 100% believe that that is necessary to consider positional isomers.

[00:29:29] Speaker 01:
And one of the things we haven't talked about here is it's not just a question of whether positional isomers of methamphetamine exist.

[00:29:36] Speaker 01:
It is, because of this Arizona statute, also the question of even if they do exist, whether they have a potential for abuse

[00:29:43] Speaker 01:
associated with the stimulant effect on the central nervous system.

[00:29:46] Speaker 01:
And I will note, since I want to catalog what our arguments are.

[00:29:49] Speaker 01:
So yes, Judge Smith, primarily remand for the purposes outlined in the answering brief.

[00:29:53] Speaker 01:
I just mentioned the potential for abuse.

[00:29:55] Speaker 01:
That does, we believe, give a route to affirming under the realistic probability approach because, and I see that my time is up if I can just finish this answer so the court's aware of how we want to proceed.

[00:30:05] Speaker 01:
This court flagged the Federal Analog Act.

[00:30:07] Speaker 01:
We do believe it provides an alternate route, which would be

[00:30:11] Speaker 01:
Because the Arizona statute, even including positional isomers, I understand Judge Barker, you think that it does not, but even though it includes positional isomers, it cabins the meaning of that to those with the potential for abuse associated with a stimulant effect on central nervous system.

[00:30:25] Speaker 04:
Okay, we've let you go a little bit.

[00:30:26] Speaker 04:
Let me ask my colleague whether either has additional questions.

[00:30:29] Speaker 04:
All right, thank you for your argument.

[00:30:32] Speaker 04:
Thank you, Ron.

[00:30:33] Speaker 04:
So Ms.

[00:30:33] Speaker 04:
Hong, you have a little bit of time, and please address the related to issue, if you will, please.

[00:30:38] Speaker 00:
Yes, your honor then I have four points starting with related issue Malui makes clear that related to applies to drugs that are defined on the CSA The second point which does not include positional isomers Felix Figueroa answers the question of what is the definition of Arizona's?

[00:31:02] Speaker 00:
definition of methamphetamine at 158

[00:31:05] Speaker 00:
Arizona's statutory definition of a dangerous drugs includes isomers of methamphetamine, whether optical, positional, or geometric.

[00:31:15] Speaker 00:
And then it cites to the Arizona statute.

[00:31:18] Speaker 00:
The second point, looking at Felix Figueroa, the BIA would have stopped right there for the second and the seventh and the eighth circuit and said that this statutory overbreath would have ended it.

[00:31:31] Speaker 00:
At footnote two, it remanded this question, not for fact finding, not for evidentiary questions, but for the realistic probability.

[00:31:40] Speaker 00:
And in footnote two, it says the only reason we're doing this is the Ninth Circuit stands alone and has not overturned

[00:31:48] Speaker 00:
Matter Ferreira when it comes to to drug offenses the six other circuits Have done so so this can be a very easy It should be a very easy legal question that other circuits follow a fan of those other circuits I'm a huge fan of the others.

[00:32:05] Speaker 00:
I'm also I'm a fan of the Ninth Circuit, too

[00:32:10] Speaker 00:
Especially when it is aligned with the reason.

[00:32:12] Speaker 04:
Especially when it agrees with you.

[00:32:14] Speaker 04:
Exactly.

[00:32:15] Speaker 04:
Indeed.

[00:32:15] Speaker 04:
Let me ask my colleagues whether they have additional questions.

[00:32:18] Speaker 04:
Thanks to both counsel for your argument in this very interesting case.

[00:32:22] Speaker 04:
The case of Alcácer Vargas versus Bondi is submitted.

[00:32:26] Speaker 00:
Thank you, your honor.

[00:32:27] Speaker 04:
Thank you very much for your argument.