April 6, 2016
Resubmitted August 4, 2017 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A095-731-273
Knapp (argued), Supervising Attorney; Laura Free (argued),
Isis Miranda (argued), Lilit Arabyan, and Eric M. Sowatsky,
Certified Law Students; Southwestern Law School, Los Angeles,
California; for Petitioner.
Ramnitz (argued), Attorney; Jennifer P. Levings, Senior
Litigation Counsel; Shelley R. Goad, Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Goldman (argued), Orrick Herrington & Sutcliffe LLP, San
Francisco, California; Manuel Vargas and Andrew Wachtenheim,
Immigrant Defense Project, New York, New York; Jayashri
Srikantiah and Lisa Weissman-Ward, Immigrants' Rights
Clinic, Mills Legal Clinic, Stanford Law School, Stanford,
California; for Amici Curiae Immigrant Defense Project,
American Immigration Lawyers Association, Asian Americans
Advancing Justice-Asian Law Caucus, Community Legal Services
in East Palo Alto, Detention Watch Network, Florence
Immigrant and Refugee Rights Project, Heartland
Alliance's National Immigrant Justice Center, Immigrant
Legal Resource Center, National Immigration Law Center,
National Immigration Project of the National Lawyers Guild,
Northwest Immigrant Rights Project, Public Counsel, and U.C.
Davis Immigration Law Clinic.
Before: A. Wallace Tashima, Barry G. Silverman, and Susan P.
Graber, Circuit Judges.
panel denied in part and dismissed in part Aracely
Marinelarena's petition for review of the Board of
Immigration Appeals' decision finding her ineligible for
cancellation of removal because she had failed to meet her
burden of proof to show that her conviction was not for a
disqualifying controlled substance offense.
panel held that the conspiracy statute under which
Marinelarena was convicted, California Penal Code §
182(a)(1), is overbroad but divisible as to the target crime.
The panel further held that the target crime, sale and
transport of a controlled substance under California Health
and Safety Code § 11352, is overbroad and divisible as
to the specific controlled substance. Accordingly, the panel
applied the modified categorical approach and concluded that
the record was inconclusive because Marinelarena's guilty
plea could have rested on an overt act that did not relate to
the effect of the inconclusive record, the panel further held
that Young v. Holder, 697 F.3d 976 (9th Cir. 2012)
(en banc), which held that a petitioner cannot carry the
burden of demonstrating eligibility for cancellation of
removal by establishing an inconclusive record, remains good
law because it is not irreconcilable with the later Supreme
Court cases of Moncrieffe v. Holder, 133 S.Ct. 1678
(2013), and Descamps v. United States, 133 S.Ct.
Therefore, the panel concluded that Marinelarena is
ineligible for cancellation because, with respect to
eligibility for relief, she bears the burden of proof to show
that her conviction did not relate to a controlled substance,
and she could not meet this burden on an inconclusive record.
panel also concluded that it lacked jurisdiction to consider
Marinelarena's unexhausted claim that the expungement of
her conviction removes it from the definition of conviction
under the immigration laws.
Judge Tashima disagreed with the majority's conclusion
that Moncrieffe does not abrogate Young,
concluding that the decisions are irreconcilable. Judge
Tashima would grant the petition for review.
GRABER, Circuit Judge
Aracely Marinelarena, a native and citizen of Mexico, stands
convicted of conspiring to sell and transport a controlled
substance in violation of California Penal Code section
182(a)(1). After the federal government initiated removal
proceedings, she conceded removability but applied for
cancellation of removal under 8 U.S.C. § 1229b(b). The
immigration judge ("IJ") denied relief. The Board
of Immigration Appeals ("BIA") held that Petitioner
had fallen short of meeting her burden of proof, by failing
to show that her conviction was not for a
disqualifying controlled substance offense, and dismissed the
appeal. We hold that the conspiracy statute under which
Petitioner was convicted is overbroad but divisible, that
Petitioner failed to carry her burden of proof to demonstrate
that her conviction did not involve a federally controlled
substance, and that she has failed to exhaust the argument
that expungement of her conviction erases its immigration
consequences. Accordingly, we deny the petition for review in
part and dismiss it in part.
AND PROCEDURAL BACKGROUND
first entered the United States in 1992 without admission or
inspection. In 2000, she was convicted of false personation
of a public officer, in violation of California Penal Code
section 529. In 2006, the State of California filed a
criminal complaint against Petitioner that charged her with
one count of conspiring to commit a felony, in violation of
California Penal Code section 182(a)(1). Specifically, it
charged Petitioner with conspiring to sell and transport a
controlled substance in violation of California Health and
Safety Code section 11352. The criminal complaint alleged
several overt acts in furtherance of the conspiracy, one of
which-the transportation of three bags containing
heroin-referred to a particular controlled substance. On
March 26, 2007, pursuant to a plea of guilty, Petitioner was
convicted of violating California Penal Code section
182(a)(1). The state court sentenced her to 136 days'
imprisonment and three years' probation.
days later, the government served Petitioner with a notice to
appear for removal proceedings. The notice charged Petitioner
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). Petitioner conceded removability but applied
for cancellation of removal under 8 U.S.C. § 1229b(b).
Around the same time, Petitioner filed separate motions in
state court to vacate her false personation and conspiracy
convictions under California Penal Code section 1203.4. In
2009, California courts granted Petitioner's motions and
vacated those convictions.
removal hearing in 2011, Petitioner argued that her
conspiracy conviction did not constitute a controlled
substance offense as defined by the Controlled Substances
Act, 21 U.S.C. § 802, because the conviction documents
do not specify the controlled substance. Petitioner also
argued that she was eligible for cancellation of removal
because her convictions had been vacated.
2012, the IJ held that Petitioner had failed to meet her
burden to demonstrate eligibility for cancellation of removal
and ordered her removed to Mexico. The IJ reasoned that
Petitioner had failed to show that she was eligible for
relief despite her convictions for false personation and
conspiracy to sell and transport a controlled substance. The
IJ noted that Petitioner's false personation conviction
under California Penal Code section 529 appeared to qualify
as a crime involving moral turpitude under 8 U.S.C. §
1227(a)(2)(A)(i). The IJ also noted that Petitioner's
conspiracy conviction under California Penal Code section
182(a)(1) "for conspiracy to distribute heroin"
barred her from relief because it was a disqualifying
controlled substance offense. Lastly, although both
convictions had been vacated, the IJ held that, because the
convictions were not vacated on the merits, they remained
valid for immigration purposes.
appeal, the BIA held that Petitioner had failed to establish
that her conspiracy conviction did not qualify as a
controlled substance offense under 8 U.S.C. §
1182(a)(2)(A)(i)(II). The BIA explained that, although
California Health and Safety Code section 11352 is broader
than the Federal Controlled Substances Act, 21 U.S.C. §
802, because the state law covers more drugs than the federal
definition, Petitioner submitted no evidence identifying the
controlled substance and, therefore, did not meet her burden
of proof. The BIA did not reach the IJ's additional
ruling that Petitioner's false personation conviction was
a crime involving moral turpitude. Nor did it reach the
expungement question, because Petitioner did not raise it in
her briefing to the BIA.
timely petitions for review. We also granted a motion by a
group of interested entities to file a joint amicus brief.