Aracely Marinelarena v. Jefferson Sessions
2017 U.S. App. LEXIS 16108
| 9th Cir. | 2017Background
- Aracely Marinelarena, a Mexican national, pleaded guilty in California to conspiracy under Cal. Penal Code § 182(a)(1) for conspiring to sell and transport a controlled substance; the underlying criminal complaint alleged transportation of heroin as an overt act.
- Two days after sentencing, the federal government initiated removal proceedings; Marinelarena conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b).
- At removal hearings Marinelarena submitted the criminal complaint but no plea colloquy, plea agreement, judgment specifying the substance, or other documents establishing the factual basis of her plea.
- The IJ denied cancellation, finding the conspiracy conviction was a disqualifying controlled-substance offense and that state expungement did not eliminate immigration consequences.
- The BIA affirmed, holding Cal. Penal Code § 182(a)(1) is overbroad but divisible, and that petitioner failed to prove by a preponderance that her conviction did not involve a federally controlled substance; it did not reach the expungement argument because it was not presented to the BIA.
- The Ninth Circuit majority denied the petition in part (substantive ruling) and dismissed the unexhausted expungement claim.
Issues
| Issue | Marinelarena's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 182(a)(1) is a categorical match to a federal controlled-substance offense | §182(a)(1) is overbroad and indivisible, so it cannot constitute a federal controlled-substance offense | §182(a)(1) is overbroad but divisible; the modified categorical approach applies | §182(a)(1) is overbroad but divisible (jury must agree on object crime), so proceed under the modified categorical approach |
| Whether the record establishes the conviction involved a federally controlled substance (burden of proof) | Ambiguity in the record should operate in petitioner’s favor (Moncrieffe); record shows heroin in the complaint | Petitioner bears burden to prove eligibility for cancellation; on an inconclusive record she fails to meet preponderance requirement (Young) | Petitioner failed to meet her burden; ambiguous record makes her ineligible for cancellation of removal |
| Whether Moncrieffe abrogates Young so that an inconclusive record benefits the noncitizen | Moncrieffe’s elements-focused approach means ambiguity precludes finding a disqualifying offense, regardless of burden allocation | Moncrieffe addressed removability (government bears burden); Young governs cancellation (applicant bears burden); precedent not irreconcilable | Moncrieffe does not overrule Young; burden allocation controls outcome for cancellation-of-removal claims |
| Whether state expungement (vacatur) eliminates immigration consequences under 8 U.S.C. § 1101(a)(48)(A) | Expungement vacating state conviction removes the conviction for immigration purposes | BIA precedent treats subsequent state expungements as not removing immigration conviction status | Claim not reached on merits — petitioner failed to exhaust before the BIA; court dismissed for lack of jurisdiction |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (framework for categorical approach)
- Descamps v. United States, 570 U.S. 254 (limits of modified categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (categorical analysis when record ambiguous in removability context)
- Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (applicant’s burden of proof in cancellation-of-removal context; inconclusive record defeats relief)
- Martinez-Lopez v. Holder, 864 F.3d 1034 (9th Cir.) (discusses categorical/modified categorical tests and divisibility analysis)