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Lozano-Arredondo v. Sessions

United States Court of Appeals, Ninth Circuit

August 8, 2017

Jose Guadalupe Lozano-Arredondo, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted October 7, 2016 Seattle, Washington.

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-392-551

          Maria 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.

         SUMMARY [*]

         Immigration

         The 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 moral turpitude.

         First, 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 Lozano-Arredondo's conviction.

         Second, 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.

          OPINION

          FISHER, Circuit Judge:

         Jose 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 [1] a crime involving moral turpitude [2] committed within five years . . . after the date of admission, and . . . [3] 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.

         First, 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).[1]

         The 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.

         The 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.

         Although 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.[2] 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)).

         BACKGROUND

         Lozano-Arredondo 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.

         The BIA 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 says:

(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 1255(j) ...

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