Almanza-Arenas v. Lynch

• Decision Date: 28 December 2015
• Docket Number: 10–73715.,Nos. 09–71415,s. 09–71415
• Citation: 815 F.3d 469
• Parties: Gabriel ALMANZA–ARENAS, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. Gabriel Almanza–Arenas, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

815 F.3d 469

Gabriel ALMANZA–ARENAS, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

Gabriel Almanza–Arenas, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

Nos. 09–71415

10–73715.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Sept. 10, 2015.

Filed Dec. 28, 2015.

Amended Feb. 29, 2016.

Mark C. Fleming (argued), Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA; Daniel Winik, Wilmer Cutler Pickering Hale and Dorr LLP, Washington D.C.; Michael J. Codner and Murray D. Hilts, Law Offices of Murray D. Hilts, San Diego, CA; Jayashri Srikantiah, and Alison Kamhi, Immigrant's Rights Clinic, Mills Legal Clinic, Stanford Law School, Stanford, CA, for Petitioner.

Leon Fresco, Deputy Assistant Attorney General (argued); Tony West, Assistant Attorney General; Leslie McKay, Assistant Director; Carol Federighi, Senior Litigation Counsel; Stefanie Notarino Hennes, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Manuel Vargas and Isaac Wheeler, Immigrant Defense Project, New York, NY, for Amicus Curiae Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, and Federal Defenders of San Diego.

Charles Roth, National Immigrant Justice Center, Chicago, IL; Matt Adams, National Immigrant Rights Project, Seattle, WA; Benjamin R. Casper, University of Minnesota Law School, Center for New Americans, Federal Immigration Litigation Clinic, Minneapolis, MN; Northwest Immigrant Rights Project, Seattle, WA, for Amici Curiae the National Immigrant Justice Center and the Northwest Immigrant Rights Project.

Vincent J. Brunkow, Reuben Camper Cahn, and Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, CA, for Amici Curiae the Ninth Circuit Federal Defenders and Community Defenders, the California Public Defenders Association and individual California Public Defender Offices, and National Association of Criminal Defense Lawyers.

Devin T. Theriot–Orr and Ralph Hua, Gibbs Houston Pauw, Seattle, WA, for Amici Curiae American Immigration Lawyers Association, Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers Guild, the University of California Davis School of Law Immigration Law Clinic, Community Legal Services in East Palo Alto, Detention Watch Network, the Florence Immigrant and Refugee Rights Project, the National Immigration Law Center, and Public Counsel.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078–755–092.

Before: SIDNEY R. THOMAS, Chief Judge and RONALD M. GOULD, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, N. RANDY SMITH, JACQUELINE H. NGUYEN, PAUL J. WATFORD AND JOHN B. OWENS, Circuit Judges.

Opinion by Judge N.R. SMITH

; Concurrence by Judge OWENS ; Concurrence by Judge WATFORD.

N.R. SMITH, Circuit Judge, joined by THOMAS, Chief Judge, and GOULD, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, IKUTA, NGUYEN, and OWENS, Circuit Judges:

ORDER

The Opinion filed on December 28, 2015, is amended as follows:

on slip Opinion page 5–6, footnote 1, please substitute the following text:

For purposes of cancellation of removal, Almanza alleges that he arrived in the United States in 1989. Neither the immigration judge ("IJ") nor the Board of Immigration Appeals ("BIA") addressed whether Almanza accrued the ten years of physical presence needed to qualify for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(A), and therefore neither do we. Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir.2000).

With this amendment, the Petitioner's Unopposed Motion to Amend Opinion is GRANTED. No petition for rehearing or rehearing en banc was filed within the original time period, and that time period has now expired. No subsequent petitions for rehearing or rehearing en banc shall be filed.

OPINION

California Vehicle Code § 10851(a) is an indivisible statute, criminalizing both conduct that would and would not constitute a crime involving moral turpitude. Therefore, section 10851(a) cannot be a categorical match to a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). Thus, we grant the petitions and remand for further proceedings, because a conviction under this statute does not render a petitioner ineligible for cancellation of removal.

I. FACTS AND PROCEDURAL HISTORY

Gabriel Almanza–Arenas ("Almanza") is a native and citizen of Mexico. Almanza last entered the United States without being admitted or paroled in October 2000.¹ In February 2005, the Department of Homeland Security ("DHS") issued a Notice to Appear, alleging that Almanza was removable because he was not properly admitted or paroled to the United States. On July 21, 2005, Almanza admitted the truth of the factual allegations in the Notice to Appear and conceded his removability. However, Almanza orally requested 8 U.S.C. § 1229b cancellation of removal at the hearing (and thereafter filed a written application in January 2006) and alternatively requested voluntary departure.²

In his application for cancellation of removal, Almanza disclosed that he pleaded guilty to a misdemeanor violation of California Vehicle Code § 10851(a) (under People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970)³ ) on September 12, 2000. The parties agree that California Vehicle Code § 10851(a) punishes both permanently depriving (which is a crime of moral turpitude) and temporarily depriving (which is not a crime of moral turpitude) an owner of his or her vehicle. People v. Garza, 35 Cal.4th 866, 28 Cal.Rptr.3d 335, 111 P.3d 310, 315 (2005).

Thus, the IJ held a hearing regarding Almanza's eligibility for cancellation of removal and voluntary departure. At the hearing, the DHS argued that Almanza's conviction disqualified him from cancellation of removal because a conviction for violation of California Vehicle Code § 10851(a) presents a crime involving moral turpitude. The DHS also placed into evidence three state court documents: (1) a felony complaint charging Almanza with a violation of California Vehicle Code § 10851(a) ;⁴ (2) a copy of Almanza's September 12, 2000 guilty plea (pursuant to People v. West, 91 Cal.Rptr. 385, 477 P.2d at 410 ) to a misdemeanor violation of California Vehicle Code § 10851(a) ; and (3) a judgment showing that Almanza received a sentence of twenty-four days time served. Neither party placed the transcript of Almanza's plea colloquy for this conviction into evidence.⁵

After the hearing, the IJ denied Almanza's petition for cancellation of removal. The IJ found that Almanza had not met his burden of proof to show eligibility for cancellation of removal, because he had not shown that he was convicted of the lesser "temporary" offense in section 10851(a).

The BIA affirmed the IJ's holding and dismissed Almanza's appeal in a published decision. Matter of Almanza–Arenas, 24 I. & N. Dec. 771 (B.I.A.2009). The BIA concluded that, because Almanza's application for relief was filed after May 11, 2005, the REAL ID Act applied to his case. Id. at 774. The BIA concluded that the conviction record before the IJ was ambiguous, and it was Almanza's duty to produce evidence (including the requested plea colloquy) that he did not commit a crime involving moral turpitude because he had the burden of proof. Id. In particular, the BIA concluded Almanza did not meet his burden of proof of showing eligibility for cancellation of removal, because he did not produce more specific evidence (as the IJ requested) to show that he did not intend to permanently deprive the owner of his or her vehicle.⁶ Id. at 774–76.

Petitioner timely petitioned for review.⁷ A three judge panel granted the petition.

Almanza–Arenas v. Holder, 771 F.3d 1184 (9th Cir.2014). We then granted rehearing en banc. Almanza–Arenas v. Lynch, 785 F.3d 366 (9th Cir.2015).

II. ANALYSIS

To determine whether section 10851(a) is a crime involving moral turpitude, we apply the three-step process set forth in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) :

At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law. If this "categorical approach" reveals that the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as [a crime involving moral turpitude]. When a statute is "overbroad," meaning that it criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is "divisible" or "indivisible." If the statute is indivisible, "our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense." Only when a statute is overbroad and divisible do we turn to step three—the "modified categorical approach." At this step, we may examine certain documents from the defendant's record of conviction to determine what elements of the divisible statute he was convicted of violating.

Lopez–Valencia v. Lynch, 798 F.3d 863, 867–68 (9th Cir.2015) (internal citations omitted).

A. Step One: Compare Elements of the State Offense to the Elements of the Federal Generic Offense.

To determine whether a state criminal statute is categorically a crime involving moral turpitude, we use a two-step process, each step with a different standard of review. Castrijon–Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013). "The first step is to identify the elements of the statute of conviction." Id. We review this step de novo, because "the BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes." Id. (alteration and citation omitted). "The second step is to compare the elements of the statute of conviction to the...