and Submitted October 7, 2016 Seattle, Washington.
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A098-392-551
Elena Andrade (argued) and Nathaniel J. Damren, Andrade
Legal, Boise, Idaho, for Petitioner.
Gregory A. Pennington, Jr. (argued) and Kathryn M. McKinney,
Trial Attorneys; Anh-Thu P. Mai-Windle and Kiley Kane, Senior
Litigation Counsel; Joyce R. Branda, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Before: William A. Fletcher, Raymond C. Fisher and N. Randy
Smith, Circuit Judges.
panel granted Lozano-Arredondo's petition for review of
the Board of Immigration Appeals' decision concluding he
was ineligible for cancellation of removal because his
conviction for petit theft in Idaho was a crime involving
the panel held that Lozano-Arredondo's record of
conviction is inadequate to determine if he was convicted of
a crime involving moral turpitude because the record does not
identify any particular statute of conviction, the Idaho
petit theft statute is not categorically a crime involving
moral turpitude, and the record contained insufficient
information to apply the modified categorical approach. The
panel noted that the effect of this inconclusive record is
unclear due to the open question of whether Young v.
Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en banc),
remains good law after the Supreme Court's decision in
Moncrieffe v. Holder, 133 S.Ct. 1678 (2013).
However, the panel declined to reach the
Young-Moncrieffe issue because another panel of this
court has priority to address it. Instead - because the panel
was remanding on another ground - the panel also remanded the
modified categorical approach question to the Board, stating
that once the Young-Moncrieffe issue is resolved by
this court, the Board can apply that law to
the panel remanded to the Board the issue of whether
Lozano-Arredondo had been convicted of an "offense
under" 8 U.S.C. § 1227(a)(2)(A)(i), which provides
that an alien "who is convicted of a crime involving
moral turpitude committed within five years . . . after the
date of admission, . . . for which a sentence of one year or
longer may be imposed, is deportable." The panel
declined to defer to the Board's published decision in
In re Cortez Canales, 25 I. & N. Dec. 301 (BIA
2010), which held that § 1227(a)(2)(A)(i) applies
regardless of when the offense was committed, and is not
limited to offenses committed within five years of admission.
The panel remanded for the Board to reconsider its
interpretation of the phrase "offense under" in the
cancellation of removal statute.
FISHER, Circuit Judge:
Guadalupe Lozano-Arredondo was denied cancellation of removal
based on his conviction for petit theft in the State of
Idaho. The Board of Immigration Appeals (BIA) concluded he
was ineligible for cancellation because this conviction
qualified as an "offense under" 8 U.S.C. §
1227(a)(2). That provision says any alien who "is
convicted of  a crime involving moral turpitude 
committed within five years . . . after the date of
admission, and . . .  for which a sentence of one year or
longer may be imposed, is deportable." §
1227(a)(2)(A)(i). Lozano-Arredondo petitions for review,
arguing (1) his petit theft conviction does not qualify as a
crime involving moral turpitude and (2) the crime occurred
more than five years after his admission to the United
States, so it does not bar him from cancellation. We grant
the petition and remand.
we hold the record of conviction is inadequate to determine
whether Lozano-Arredondo was convicted of a crime involving
moral turpitude. Although the record shows Lozano-Arredondo
was convicted of petit theft, it does not identify any
particular statute of conviction, and Idaho's petit theft
statute as a whole is overbroad under the categorical
approach. See Almanza-Arenas v. Lynch, 815 F.3d 469,
476 (9th Cir. 2015) (en banc); Castillo-Cruz v.
Holder, 581 F.3d 1154, 1159-60 (9th Cir. 2009);
Mendoza v. Holder, 623 F.3d 1299, 1302-03 (9th Cir.
2010). Under the modified categorical approach, the
record contains insufficient information to determine whether
Lozano-Arredondo was convicted under one of the Idaho petit
theft provisions meeting the generic federal offense. See
United States v. Grisel, 488 F.3d 844, 851-52 (9th Cir.
2007) (en banc).
effect of this inconclusive record, however, is unclear.
Under Young v. Holder, 697 F.3d 976, 989 (9th Cir.
2012) (en banc), Lozano-Arredondo bears the burden of
establishing he was not convicted of a crime
involving moral turpitude, and an inconclusive record means
he has not carried this burden. But it is an open question
whether Young remains good law after the Supreme
Court's decision in Moncrieffe v. Holder, 133
S.Ct. 1678 (2013), which suggests Lozano-Arredondo would win
under an inconclusive record. Because another panel of this
court has priority to address the Young-Moncrieffe
issue, we do not reach it. Instead - because we remand on
Lozano-Arredondo's second argument - we remand the
modified categorical approach issue to the BIA as well. Once
the Young-Moncrieffe question is resolved, the BIA
can apply that law to Lozano-Arredondo's conviction.
second issue is whether Lozano-Arredondo is ineligible for
cancellation of removal even though he committed petit theft
more than five years after his admission to the United
States. The BIA concluded he is ineligible in this
circumstance. Relying on its decision in In re Cortez
Canales, 25 I. & N. Dec. 301, 307 (BIA 2010), the
BIA held a conviction qualifies as an "offense
under" § 1227(a)(2) if it involves a crime of moral
turpitude punishable by at least a year in prison -
regardless of when the crime was committed.
we ordinarily defer to an agency's reasonable
interpretation of an ambiguous statute, see Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843 (1984), the BIA's interpretation of an
"offense under" § 1227(a)(2) is not entitled
to deference. The BIA erroneously concluded
Congress' intent had been clearly expressed at
Chevron step one, Cortez Canales, 25 I.
& N. Dec. at 308, and thus did not exercise its
"expertise and discretion in interpreting the
statute" at Chevron step two, Gila River
Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th
Cir. 2013). In this circumstance, rather than interpret the
statute ourselves in the first instance, "we 'remand
to require the agency to consider the question afresh in
light of the ambiguity we see.'" Id. at
1151 (quoting Delgado v. Holder, 648 F.3d 1095, 1103
n.12 (9th Cir. 2011) (en banc)).
entered the United States in August 1990 without being
admitted. He was convicted of petit theft in 1997. In 2005,
the Department of Homeland Security initiated removal
proceedings, and Lozano-Arredondo applied for cancellation of
removal under 8 U.S.C. § 1229b(b). In 2007, an
Immigration Judge (IJ) determined Lozano-Arredondo was
ineligible for cancellation of removal because he had
admitted to committing statutory rape.
dismissed his appeal on different grounds, concluding that
his petit theft conviction made him ineligible for
cancellation under § 1229b(b)(1)(C). That statute says,
in relevant part, "[t]he Attorney General may cancel
removal of . . . an alien who is inadmissible or deportable
from the United States if the alien . . . has not been
convicted of an offense under section 1182(a)(2), 1227(a)(2),
or 1227(a)(3) of this title." The BIA determined
Lozano-Arredondo's petit theft conviction was an
"offense under" § 1227(a)(2)(A)(i), which
(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude
Any alien who-
(I) is convicted of a crime involving moral turpitude
committed within five years (or 10 years in the case of an
alien provided lawful permanent resident status under section