Marinelarena v. Garland

• Decision Date: 26 July 2021
• Docket Number: No. 14-72003,14-72003
• Citation: 6 F.4th 975
• Parties: Aracely MARINELARENA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

6 F.4th 975

Aracely MARINELARENA, Petitioner,
v.
Merrick B. GARLAND, Attorney General, Respondent.

No. 14-72003

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 29, 2021 Pasadena, California
Filed July 26, 2021

Benjamin P. Chagnon (argued), Robert M. Loeb, and Thomas M. Bondy, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Brian P. Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco, California; 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; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: A. Wallace Tashima, Barry G. Silverman, and Susan P. Graber, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Tashima

GRABER, Circuit Judge:

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This case comes before our court for the third time. In Marinelarena v. Sessions ("Marinelarena I "), 869 F.3d 780 (9th Cir. 2017), we upheld the Board of Immigration Appeals’ ("BIA") denial of Petitioner Aracely Marinelarena's application for cancellation of removal. Rehearing the case en banc, the court granted the petition for review on the sole ground that, because the record of Petitioner's state-law conviction was ambiguous, she was not "necessarily" convicted of conspiring to sell and transport a controlled substance as defined under federal law and thus was not barred from relief under 8 U.S.C. § 1229b(b). Marinelarena v. Barr , 930 F.3d 1039, 1054 (9th Cir. 2019) (en banc). The Supreme Court of the United States subsequently decided Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 762–63, 209 L.Ed.2d 47 (2021), which clarified the effect of an ambiguous record when the relevant statute places the burden of proof on an applicant for immigration relief to show the absence of a disqualifying conviction. The Court held that, when the applicant stands convicted under a divisible state criminal statute that includes some offenses that are disqualifying and others that are not, and the record of conviction is ambiguous concerning which category fits the applicant's crime, then the applicant has failed to carry the required burden of proof. Id. at 762–63. Following Pereida , the Court granted the government's petition for certiorari in this case and remanded proceedings to the en banc court, Wilkinson v. Marinelarena , ––– U.S. ––––, 141 S. Ct. 1512, 209 L.Ed.2d 251 (2021) (mem.), which in turn has remanded the matter to the original panel, Marinelarena v. Garland , 992 F.3d 1143 (9th Cir. 2021) (en banc) (mem.). We now deny the petition for review.

We incorporate by reference the following portions of the original panel opinion: the factual and procedural background, Marinelarena I , 869 F.3d at 783–84 ; the standard of review, id. at 785 ; and Part A of the discussion, which concerns overbreadth and divisibility, id. at 785–88. We also supplement that material with the following observations and holdings.

A. Divisibility

No developments in the California Supreme Court in the years since our 2017 opinion undermine our earlier analysis of divisibility. Because we conclude that the California Supreme Court has provided clear direction, we decline Petitioner's invitation to certify a question to that court.

We also note that a judge, in instructing a California jury on a conspiracy charge, must direct the jury to the elements of the underlying crime. Jud. Council of Cal. Crim. Jury Instr. No. 415 (2014) (hereinafter "CALCRIM"). In turn, the jury instruction concerning the underlying crime of Petitioner's conviction supports divisibility by requiring the judge to identify, and the jury to find, a specific drug:

The defendant is charged [in Count __ ] with (selling/furnishing/administering/giving away/transporting for sale/importing) _______ < insert type of controlled substance>, a controlled substance, [in violation of ____________ < insert appropriate code section[s]>].

CALCRIM No. 2300 (emphasis added) (bracketed material in original). Moreover, if the particular controlled substance at issue in the prosecution is not listed in certain statutory schedules, the judge must require the jury to name the specific type of controlled substance and to find whether it is an analog of a listed controlled substance. Id.

6 F.4th 978

B. Burden of Proof

The Supreme Court's decision in Pereida rejected the analysis of the en banc court in Marinelarena and is consistent with the panel majority's original decision. See Marinelarena I , 869 F.3d at 789 ("It is well established that the party who bears the burden of proof loses if the record is inconclusive on the crucial point."). For the reasons explained in our original opinion, Petitioner failed to establish that her conviction did not involve a federally controlled substance. See 8 U.S.C. § 1229a(c)(4)(A)(i) (providing that an applicant for relief from removal "has the burden of proof to establish that" he or she "satisfies the applicable eligibility requirements").

We decline Petitioner's invitation to remand this case for the purpose of presenting additional evidence. First, in the seven years this case has been in our court, Petitioner has never argued that her conviction involved a non-disqualifying controlled substance. Instead, she always has maintained that she prevails simply because of the ambiguity in her record of conviction. See Rizk v. Holder , 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (holding that the petitioner forfeited issues not raised in the opening brief). Thus, Petitioner's argument rests on ambiguity, and ambiguity is insufficient. "[J]ust as evidentiary gaps work against the government in criminal cases, they work against" Petitioner in an immigration case like this one. Pereida , 141 S. Ct. at 766.

Second, it is clear from documents outside the scope of Shepard v. United States , 544 U.S. 13, 20–23, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005),¹ that the conspiracy offense of which Petitioner was convicted involved heroin, a federally controlled substance, 21 U.S.C. § 841(b)(1)(A)(i), (b)(1)(B)(i). The overt-acts allegations in Count 1 of the complaint, to which Petitioner pleaded guilty, refer only to heroin. Similarly, Count 2 refers only to heroin. Pre-trial materials and the probation officer's report state that the offense involved heroin. No non-disqualifying drug is mentioned in any relevant document.

Third, Petitioner declined the immigration judge's requests to provide additional documents related to her conviction, although she had ample time and opportunity to do so, and our task is to review the record that was made. See Lising v. INS , 124 F.3d 996, 998 (9th Cir. 1997) (holding that we generally will not consider "evidentiary material that either party could have presented to the BIA but that the petitioner simply failed to introduce at the hearing"). Petitioner also argues that she should have an opportunity to testify before an immigration judge concerning the type of drug involved in the conspiracy to which she pleaded guilty, even if her testimony differs from the information contained in the documents of record. But she had that opportunity. She could have sought to testify, for example, that the records were mistaken or legally flawed. If her testimony was disallowed, she could have made an offer of proof. She also could have argued to this court—before the three-judge panel or the en banc court—that she should be allowed to provide documents beyond Shepard ’ s scope to show that her offense did not, in fact, involve a

6 F.4th 979

federally controlled substance. She pursued none of those options. She made no offer of proof, no effort to testify, and no argument that she should be allowed to offer other forms of proof. Thus, our usual rule that we give the agency the first chance to apply a new evidentiary standard on remand, Kawashima v. Holder , 615 F.3d 1043, 1056–57 (9th Cir. 2010), aff'd , 565 U.S. 478, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012), does not apply.

C. Expungement

No developments in the precedents of this court or of the Supreme Court, since we issued our previous opinion in 2017, undermine our conclusion that a state conviction expunged under California Penal Code section 1203.4 remains a "conviction" for federal immigration purposes. Marinelarena I , 869 F.3d at 792 n.8. Indeed, Petitioner concedes that "this argument is foreclosed on its merits." See , e.g. , Lopez v. Sessions , 901 F.3d 1071, 1075–76 (9th Cir. 2018) (holding that a person generally continues to stand convicted of an offense despite such a later expungement). We agree.

Petition DENIED.

TASHIMA, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority's holdings on divisibility and expungement. I disagree, however, with the majority's decision to deny Marinelarena's request that this case be remanded to the Board of Immigration Appeals ("BIA"). In Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 209 L.Ed.2d 47 (2021), the Supreme Court rejected Ninth Circuit and BIA precedent and held for...