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Marinelarena v. Sessions

United States Court of Appeals, Ninth Circuit

August 23, 2017

Aracely Marinelarena, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued April 6, 2016

          Resubmitted August 4, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-731-273

          Andrew 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.

          Tim 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 Respondent.

          Brian 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.

         SUMMARY [*]

         Immigration

         The 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.

         The 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 heroin.

         Addressing 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. 2276 (2013).

          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.

         The 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.

         Dissenting, 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.

          OPINION

          GRABER, Circuit Judge

         Petitioner 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner 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.[1]

         Two 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.

         At a 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.

         In 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.

          On 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.

         Petitioner timely petitions for review. We also granted a motion by a group of interested entities to file a joint amicus brief.

         STANDARD ...


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