and Submitted En Banc September 27, 2018 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A095-731-273
P. Goldman (argued), Orrick Herrington & Sutcliffe LLP,
San Francisco, California; Benjamin P. Chagnon, Thomas M.
Bondy, and Robert M. Loeb, Orrick Herrington & Sutcliffe
LLP, Washington, D.C.; Andrew Knapp, Southwestern Law School,
Los Angeles, California; for Petitioner.
Ramnitz (argued), Attorney; Patrick J. Glen, Senior
Litigation Counsel; John W. Blakeley, Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Jayashri Srikantiah and Jennifer Stark, Immigrants'
Rights Clinic, Mills Legal Clinic, Stanford Law School,
Stanford, California; Andrew Wachtenheim and Manuel Vargas,
Immigrant Defense Project, New York, New York; for Amici
Curiae Immigrant Defense Project, American Immigration
Lawyers Association, Asian Americans Advancing Justice-Asian
Law Caucus, Community Legal Services in East Palo Alto,
Detention Watch Network, Florence Immigrant and Refugee
Rights Project, Heartland Alliance's National Immigrant
Justice Center, Immigrant Legal Resource Center, National
Immigration Law Center, National Immigration Project of the
National Lawyers Guild, Northwest Immigrant Rights Project,
Public Counsel, and U.C. Davis Immigration Law Clinic.
L. Rosenbluth and Christopher G. Clark, Boston,
Massachusetts; Philip L. Torrey, Managing Attorney, Harvard
Immigration and Refugee Clinical Program, Cambridge,
Massachusetts; Jason A Cade, Athens, Georgia; Carrie L.
Rosenbaum, San Francisco, California; for Amici Curiae
Immigration Law Professors.
Before: Sidney R. Thomas, Chief Judge, and A. Wallace
Tashima, Susan P. Graber, William A. Fletcher, Marsha S.
Berzon, Johnnie B. Rawlinson, Jay S. Bybee, Milan D. Smith,
Jr., Sandra S. Ikuta, Paul J. Watford and Michelle T.
Friedland, Circuit Judges.
Aracely Marinelarena's petition for review, reversing a
decision of the Board of Immigration Appeals, and remanding,
the en banc court overruled Young v. Holder, 697
F.3d 976 (9th Cir. 2012) (en banc), and held that, in the
context of eligibility for cancellation of removal, a
petitioner's state-law conviction does not bar relief
where the record is ambiguous as to whether the conviction
constitutes a disqualifying predicate offense.
was charged with conspiracy to commit a felony in violation
of California Penal Code § 182(a)(1), namely conspiring
to sell and transport a controlled substance in violation of
California Health and Safety Code § 11352. The complaint
listed a number of overt acts in support, only one of which
referenced a specific controlled substance, heroin. Upon a
guilty plea, Marinelarena was convicted of violating §
removal proceedings, Marinelarena argued that her conviction
did not constitute a controlled substance offense that barred
cancellation of removal because her record of conviction did
not identify that the conviction rested on a specific
controlled substance. However, the BIA concluded that
Marinelarena had the burden of establishing that her
conviction was not a disqualifying offense, and that she had
not met that burden.
determining whether Marinelarena's conviction constituted
a predicate offense for immigration purposes, the en banc
court applied the three-step process derived from Taylor
v. United States, 495 U.S. 575 (1990).
the en banc court held that the conspiracy statute under
which Marinelarena was convicted was not a categorical match
to the relevant federal controlled substance offense because
a defendant could be convicted under California Penal Code
§ 182(a)(1) for any criminal conspiracy, whether or not
it relates to a controlled substance offense.
the en banc court assumed that § 182(a)(1) is divisible
both as to the predicate crime underlying the conspiracy
(here, § 11352) and as to the controlled substance
element of § 11352, explaining that the issue of
divisibility made no difference to the outcome of the case.
the en banc court applied the modified categorical approach,
in which the court examines judicially noticeable documents
of conviction - known as Shepard documents after
Shepard v. United States, 544 U.S. 13 (2005) - to
determine whether a petitioner was "necessarily"
convicted of a state crime with the same basic elements as
the relevant generic federal crime. In doing so, the en banc
court concluded that Marinelarena's record of conviction
was ambiguous because her guilty plea could have rested on an
overt act that did not relate to heroin and, therefore, the
en banc court could not assume her conviction was predicated
on an act involving a federally controlled substance.
Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en
banc), this court previously held that when a record of
conviction is ambiguous after analyzing the Shepard
documents, a petitioner is ineligible for cancellation
because she has not met her burden of showing that she was
not convicted of a disqualifying offense. However, the en
banc court overruled Young, holding that it was
incompatible with the Supreme Court's subsequent decision
in Moncrieffe v. Holder, 569 U.S. 184 (2013). In so
concluding, the en banc court explained that
Moncrieffe held that, if a record of conviction does
not conclusively establish that a petitioner was
convicted of the elements of a generic offense, then she was
not convicted of the offense for immigration purposes.
banc court also explained that the fact Moncrieffe
involved the question of whether the petitioner was
removable, not whether the petitioner was eligible for
cancellation of removal, did not change the analysis,
observing that the Supreme Court explicitly explained in
Moncrieffe that the categorical analysis is the same
in both the removal and cancellation of removal contexts.
However, the government had argued that
Moncrieffe's analysis does not extend to
cancellation of removal because the government bears the
burden in the removal context, while the petitioner bears the
burden in the cancellation of removal context. The en banc
court rejected that argument, explaining that the key
question here addressed a question of law: What do the
uncontested documents in the record establish about the
elements of the crime of conviction with the requisite
certainty? The en banc court concluded that this legal query
required no factual finding and was therefore unaffected by
statutory burdens of proof.
banc court noted that the predicate factual question that
would be relevant to this analysis was whether all relevant
and available documents had been produced, but the en banc
court explained that this question implicated a possible
burden of production, not the burden of proof. Because the
BIA did not address whether all the relevant documents had
been produced, the en banc court remanded to the BIA to
consider in the first instance the placement and scope of the
burden of production for Shepard documents as it
applies in cancellation of removal.
because the en banc court panel held that Marinelarena's
conviction was not a controlled substance offense barring
cancellation of removal, the en banc court concluded it need
not reach the issue of the effect of the expungement of
Judge Ikuta, joined by Judges Graber and Rawlinson, wrote
that the majority confused the relevant legal and factual
issues, thereby creating a new rule that, when an alien has a
prior conviction under a state statute that includes
multiple, alternative versions of the offense, and there is
insufficient evidence in the record to prove which of those
alternative versions the alien was convicted of, the court
must assume as a matter of law that the alien's
conviction did not match the federal generic offense. Judge
Ikuta wrote that the majority's new rule: (1) finds no
support in Moncrieffe; (2) is contrary to
Young, which Judge Ikuta explained was not overruled
by Moncrieffe because the cases address entirely
distinct issues; (3) conflicts with the majority of sister
circuits; (4) is contrary to the Immigration &
Nationality Act in that the majority's new rule overrides
the statute and regulation that put the burden on the alien
to establish eligibility for relief; and (5) will encourage
aliens to withhold and conceal evidence.
TASHIMA, CIRCUIT JUDGE:
decide whether, in the context of eligibility for
cancellation of removal under 8 U.S.C. § 1229b(b), a
record that is ambiguous as to whether a state law conviction
constitutes a predicate offense that would bar a petitioner
from relief actually does bar relief. We hold that it does
Aracely Marinelarena ("Marinelarena"), a noncitizen
who last entered the United States in 2000, conceded that she
was removable, but petitioned for cancellation of removal
under 8 U.S.C. § 1229b(b). The immigration judge
("IJ") denied her relief, and the Board of
Immigration Appeals ("BIA") affirmed, holding that
Marinelarena had failed to demonstrate that her prior
conviction was not for a disqualifying federal
offense and, therefore, had not met her burden of showing
that she was eligible for cancellation of removal.
Marinelarena petitioned for review of the BIA's final
decision. We grant her petition, reverse the BIA's
determination, and remand to the agency.
that the statute under which Marinelarena was convicted was
overbroad at the time of her conviction. We further hold,
overruling our previous decision in Young v.
Holder, 697 F.3d 976 (9th Cir. 2012) (en banc),
that, under Moncrieffe v. Holder, 569 U.S. 184
(2013), an ambiguous record of conviction does not
demonstrate that a petitioner was convicted of a
disqualifying federal offense. We do not reach the issue of
whether there is a separate burden of production in the
cancellation of removal context and, if so, who bears it, and
remand to the BIA to consider this issue in the first
and Procedural Background
a native and citizen of Mexico, first entered the United
States in 1992. After living in the United States for a
number of years, she returned to Mexico briefly in 1999, but
re-entered the United States in 2000 following inspection and
admission. Marinelarena has lived in the United States since
and has two children who are United States citizens.
2000, on a plea of nolo contendere, Marinelarena was
convicted of a misdemeanor under California Penal Code §
529 for false personation of another. In 2006, she was
charged with one count of conspiracy to commit a felony in
violation of California Penal Code § 182(a)(1),
namely conspiring to sell and transport a controlled
substance in violation of California Health and Safety Code
§ 11352. The complaint listed a number of overt
acts in support, only one of which referenced a specific
controlled substance, heroin. Marinelarena pleaded guilty and
was convicted of violating California Penal Code §
182(a)(1) on March 26, 2007. She was fined, sentenced to
three years of probation, and 136 days in county jail.
Following her conviction, Marinelarena filed separate
petitions in state court under California Penal Code §
1203.4 to expunge her false personation and conspiracy
convictions. In 2009, California courts granted both of
Marinelarena's petitions, vacating her § 529 and
§ 182(a)(1) convictions.
on March 28, 2007, following her conspiracy conviction, the
Department of Homeland Security served Marinelarena with a
notice to appear for removal proceedings. The notice charged
her with removability as an alien who had remained in the
United States longer than permitted, in violation of 8 U.S.C.
§ 1227(a)(1)(B). Marinelarena conceded removability, but
applied for cancellation of removal under 8 U.S.C. §
removal hearing in 2011, the IJ noted that Marinelarena's
conspiracy conviction had been expunged under California
Penal Code § 1203.4, but stated that such an expungement
would not eliminate the conviction for immigration purposes,
unless the dismissal had been on constitutional grounds. The
IJ continued the hearing, instructing Marinelarena to submit
any documents or briefing as to why she remained eligible.
Accordingly, she submitted a brief arguing that she remained
eligible for cancellation of removal despite her §
182(a)(1) conviction. She argued that, because the conviction
documents in the record did not identify that the crime of
conviction rested on a specific controlled substance, her
conviction did not constitute a controlled substance offense
as defined by the Controlled Substances Act
("CSA"), 21 U.S.C. § 802.
rendered an oral decision in 2012, holding that Marinelarena
had failed to demonstrate eligibility for cancellation of
removal and ordering her removed to Mexico. The IJ determined
that although her conviction under § 529 for false
personation had been expunged, that expungement did not
disqualify it for immigration purposes and the conviction
constituted a crime involving moral turpitude under 8 U.S.C.
§ 1227(a)(2)(A)(i). The IJ also found that, "more
importantly," her crime "for conspiracy to
distribute heroin"-as the IJ construed the criminal
complaint-would also bar her from relief. Consequently, the
IJ denied her relief.
appeal, the BIA also held that Marinelarena had the burden of
establishing that her conspiracy conviction was not a
disqualifying offense, and that she had not met that burden.
The BIA explained that California Health and Safety Code
§ 11352 is broader than the CSA with respect to the
substances covered, 21 U.S.C. § 802, but divisible, and
that Marinelarena had failed to submit any evidence showing
that she was not convicted of a disqualifying
controlled substance offense. Therefore, the BIA ruled,
Marinelarena had not established that she was eligible for
cancellation of removal. The BIA did not discuss her
conviction under California Penal Code § 529, nor did it
discuss the expungement of either conviction.
timely petitioned for review. A three-judge panel, in a split
decision, denied in part and dismissed in part the petition.
Marinelarena v. Sessions, 869 F.3d 780, 792 (9th
Cir. 2017). We then granted rehearing en banc.
Marinelarena v. Sessions, 886 F.3d 737 (9th Cir.
review questions of law de novo. Coronado v. Holder,
759 F.3d 977, 982 (9th Cir. 2014).
Conviction for a Controlled Substance Offense
eligible for cancellation of removal under 8 U.S.C. §
1229b(b), Marinelarena must meet four requirements,
including, as relevant here, that she has not been convicted
of a "controlled substance" offense, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Thus, the central question on
appeal is whether Marinelarena's California-state-law
conviction for conspiracy to sell and transport a controlled
substance constitutes a controlled substance offense under
federal law for the purposes of § 1229b(b).
order to determine whether a state conviction constitutes a
predicate offense for immigration purposes, this court
employs the now-familiar three-step process derived from
Taylor v. United States, 495 U.S. 575 (1990).
See Medina-Lara v. Holder, 771 F.3d 1106, 1111-12
(9th Cir. 2014). "First, we ask whether the state law is
a categorical match with a federal [controlled substance]
offense[, ] . . . look[ing] only to the 'statutory
definitions' of the corresponding offenses."
United States v. Martinez-Lopez, 864 F.3d 1034, 1038
(9th Cir. 2017) (en banc) (quoting Taylor, 495 U.S.
at 600), cert. denied, 138 S.Ct. 523 (2017).
"If a state law 'proscribes the same amount of or
less conduct than' that qualifying as a federal drug
trafficking offense, then the two offenses are a categorical
match." Id. (quoting United States v.
Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014) (per
curiam)); see also Descamps v. United States, 570
U.S. 254, 257 (2013) (holding that a state offense and a
federal offense are a categorical match if "the [state]
statute's elements are the same as, or narrower than,
those of the generic [federal] offense").
not-i.e., if the state statute criminalizes a
broader range of conduct than does the federal offense-we
continue to the second step: asking whether the statute of
conviction is "divisible." Id. A state
offense is "divisible" if it has
"'multiple, alternative elements, and so effectively
creates several different crimes.'"
Almanza-Arenas v. Lynch, 815 F.3d 469, 476 (9th Cir.
2016) (en banc) (quoting Descamps, 570 U.S. at 264).
"Alternatively, if [the offense] has a 'single,
indivisible set of elements' with different means of
committing one crime, then it is indivisible and we end our
inquiry, concluding that there is no categorical match."
Id. at 476-77 (quoting Descamps, 570 U.S.
statute is both overbroad and divisible, we continue to the
third step and apply the "modified categorical
approach." Martinez-Lopez, 864 F.3d at 1039.
"At this step, we examine judicially noticeable
documents of conviction 'to determine which statutory
phrase was the basis for the conviction.'"
Id. (quoting Descamps, 570 U.S. at 263).
When doing so, we can consider only a restricted set of
materials, including "the charging document, the terms
of a plea agreement," the "transcript of [the plea]
colloquy," and "comparable judicial
record[s]." Shepard v. United States, 544 U.S.
13, 26 (2005) (plurality opinion); see also
Lopez-Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir.
2015). In examining these documents, our focus is on whether
petitioner was "necessarily" convicted of a
state-law crime with the same "basic elements" as
the generic federal crime, not on the underlying facts of the
conviction. Descamps, 570 U.S. at 260-61, 263.
agree with Marinelarena that California Penal Code §
182(a)(1) is overbroad, and we assume for purposes of this
appeal that it is divisible. Therefore, we apply the modified
we consider whether Marinelarena's conspiracy conviction
is a categorical match to the relevant generic federal
offense. California Penal Code § 182(a)(1) punishes a
broader range of conduct than either 8 U.S.C. §
1182(a)(2)(A)(i)(II) or § 1227(a)(2)(B)(I). A defendant
could be convicted under § 182(a)(1) for any criminal
conspiracy, whether or not it relates to a controlled
substance. A conviction under § 182(a)(1), therefore,
cannot count as a controlled substance offense under the
categorical approach. See, e.g., United States
v. Trent, 767 F.3d 1046, 1052 (10th Cir. 2014) (holding
that a conspiracy conviction under Okla. Stat. Ann. tit. 21,
§ 421(A)-a statute textually similar to California Penal
Code § 182(a)(1)-is not a serious drug offense under the
categorical approach because "the statute could be
violated in many ways that have nothing to do with
drugs"), abrogated on other grounds by Mathis v.
United States, 136 S.Ct. 2243, 2251 (2016).
determined that § 182(a)(1) is not a categorical match,
we normally next turn to the question of divisibility.
However, for our purposes, it is sufficient to assume that
§ 182(a)(1) is divisible both as to the predicate crime
underlying the conspiracy (here, § 11352) and as to the
controlled substance element of § 11352, for, as
explained below, it would make no difference in the outcome
of this case if it were not.
Modified Categorical Approach
Analyzing the Shepard Documents
proceed to step three, the modified categorical approach, and
"examine judicially noticeable documents of
conviction" to determine the basis for petitioner's
conviction. Martinez-Lopez, 864 F.3d at 1039. Here,
the only judicially noticeable document in the record
relating to Marinelarena's criminal offense is the
criminal complaint, which identifies the target offense of
the conspiracy as selling and transporting a controlled
substance in violation of California Health and Safety Code
§ 11352. The complaint identifies sixteen overt acts,
only one of which references a specific controlled substance,
heroin. But a complaint alone is insufficient to prove a
conviction related to a particular controlled substance,
see Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152
(9th Cir. 2003) (noting that where a defendant enters a
guilty plea, "charging papers alone are never
sufficient" to establish the elements of conviction
(quoting United States v. Corona-Sanchez, 291 F.3d
1201, 1211 (9th Cir. 2002))), and the record contains no plea
agreement, plea colloquy, or judgment to establish the
elements on which Marinelarena's conviction under §
even though heroin is a controlled substance under federal
law, see 21 U.S.C. § 802(6) (defining
"controlled substance" by reference to statutory
schedules, including Schedule I); 21 U.S.C. § 812,
Schedule I (b)(10) (listing heroin on Schedule I), the record
is inconclusive as to whether Marinelarena's plea
included the sole heroin allegation in the complaint, which
was not necessary to conviction for the conspiracy offense.
Because Marinelarena's guilty plea could have rested on
an overt act that did not relate to heroin, we cannot assume
her conviction was predicated on an act involving a federal
controlled substance. Thus, the record of her conviction is
ambiguous as to whether Marinelarena's conviction related
to a federal controlled substance.
the BIA found that, considering the complaint, Marinelarena
had failed to carry her burden of establishing that she was
not convicted of a disqualifying controlled substance
offense. Previously, we had held that when the record of
conviction is ambiguous after analyzing the Shepard
documents, a petitioner is ineligible for cancellation of
removal because she has not met her burden of showing that
she was not convicted of a disqualifying federal
offense.See Young, 697 F.3d at 990.
Subsequent Supreme Court decisions, however, have brought
into question the foundation of this conclusion. See
Moncrieffe v. Holder, 569 U.S. 184, 189-90 (2013);
Descamps, 570 U.S. at 263-64. We therefore granted
rehearing en banc to reconsider our earlier decision.