Marinelarena v. Barr

• Citation: 930 F.3d 1039
• Decision Date: 18 July 2019
• Docket Number: No. 14-72003,14-72003
• Parties: Aracely MARINELARENA, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

930 F.3d 1039

Aracely MARINELARENA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 14-72003

United States Court of Appeals, Ninth Circuit.

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

Filed July 18, 2019

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, 133 S.Ct. 1678, 185 L.Ed.2d 727 (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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. 2143 ), cert. denied , ––– U.S. ––––, 138 S. Ct. 523, 199 L.Ed.2d 400 (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, 133 S.Ct. 2276, 186 L.Ed.2d 438 (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, 133 S.Ct. 2276 ). "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, 133 S.Ct. 2276 ).

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, 133 S.Ct. 2276 ). 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, 125 S.Ct. 1254, 161 L.Ed.2d 205 (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, 133 S.Ct. 2276.

We agree with Marinelarena that California Penal Code § 182(a)(1) is...