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Marinelarena v. Barr

United States Court of Appeals, Ninth Circuit

July 18, 2019

Aracely Marinelarena, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted En Banc September 27, 2018 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-731-273

          Brian 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.

          Tim 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 Respondent.

          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.

          Sarah 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.

         SUMMARY[*]

         Immigration

         Granting 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.

         Marinelarena 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 § 182(a)(1).

         In 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.

         In 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).

         First, 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.

         Second, 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.

         Third, 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.

         In 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.

         The en 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.

         The en 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.

         Finally, 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 Marinelarena's conviction.

         Dissenting, 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.

          OPINION

          TASHIMA, CIRCUIT JUDGE:

         We must 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 not.

         Petitioner 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.

         We hold 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 instance.

         Factual and Procedural Background

         Marinelarena, 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.

         In 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), [1] namely conspiring to sell and transport a controlled substance in violation of California Health and Safety Code § 11352.[2] 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.

         Meanwhile, 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. § 1229b(b).

         At a 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.

         The IJ 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.

         On 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.

         Marinelarena 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. 2018).[3]

         Standard of Review

         We review questions of law de novo. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014).

         Discussion

         I. Conviction for a Controlled Substance Offense

         To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b), Marinelarena must meet four requirements, [4] 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).

         In 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").

         If 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. at 265).

         If the 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.

         We 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 categorical approach.

         A. Categorical Approach

         First, 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).

         B. Divisibility

         Having 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.

         C. Modified Categorical Approach

         1. Analyzing the Shepard Documents

         We 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 § 182(a)(1) rested.

         Therefore, 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.

         Here, 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.[5]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.

         2. Ambiguous ...


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