930 F.3d 1039
9th Cir.2019Background
- Petitioner Aracely Marinelarena, a lawful noncitizen, pleaded guilty to California Penal Code § 182(a)(1) (conspiracy) based on a complaint alleging conspiracy to sell/transport controlled substances (Cal. Health & Safety Code § 11352); only one of 16 overt acts in the complaint named heroin.
- The §182 conviction was later expunged under Cal. Penal Code § 1203.4, but immigration authorities treated it as a conviction for removal/relief purposes.
- Marinelarena applied for cancellation of removal under 8 U.S.C. § 1229b(b); IJ and BIA denied relief, finding she failed to show her conviction was not a disqualifying federal controlled-substance offense.
- The Ninth Circuit en banc reversed the BIA: it held the state conspiracy statute was overbroad, the record of conviction was ambiguous as to whether it involved a federally controlled substance, and under Supreme Court precedent such ambiguity does not establish a disqualifying conviction.
- The court overruled Young v. Holder to the extent Young required an alien to lose when Shepard documents are ambiguous, and remanded for the BIA to consider the burden of production for Shepard documents in cancellation proceedings.
Issues
| Issue | Marinelarena’s Argument | Barr (Gov’t) Argument | Held |
|---|---|---|---|
| Whether §182(a)(1) conspiracy conviction is categorically a federal "controlled substance" offense for cancellation eligibility | Her record is ambiguous and does not show conviction necessarily involved a federal controlled substance, so she is not disqualified | The conviction counts because state statute/divisible record can be read to include disqualifying substances | §182(a)(1) is overbroad; not a categorical match to federal CSA offense |
| Whether an ambiguous record of conviction (Shepard documents) bars cancellation where petitioner bears burden of proving eligibility | Moncrieffe requires that ambiguity means petitioner was not convicted of disqualifying offense; burden of proof irrelevant to this legal question | Young and statutory burdens mean petitioner loses if record inconclusive | Ambiguous Shepard record does not show a disqualifying conviction; Young overruled as inconsistent with Moncrieffe |
| Whether Moncrieffe’s rule (applies in removal context) extends to cancellation of removal (different burdens of proof) | Categorical/modified-categorical analyses are legal questions; burdens of proof do not alter legal conclusion | Different statutory burdens in removal vs cancellation mean Moncrieffe shouldn't control cancellation context | Moncrieffe governs both contexts; burden of proof does not change the legal inquiry |
| Who bears the burden of producing Shepard documents in cancellation proceedings | Court should remand because BIA did not decide; issue implicates burden of production not proof | Government favored placing production burden on petitioner | Remanded to BIA to determine placement/scope of burden of production for Shepard documents; court did not decide it |
Key Cases Cited
- Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (prior Ninth Circuit en banc rule that ambiguous Shepard records defeat petitioner’s showing of eligibility)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (ambiguity in record means conviction did not necessarily involve elements of disqualifying federal offense)
- Descamps v. United States, 570 U.S. 254 (2013) (explaining categorical and modified categorical approaches and use of limited judicial records)
- Taylor v. United States, 495 U.S. 575 (1990) (origin of categorical approach framework)
- Shepard v. United States, 544 U.S. 13 (2005) (limiting documents courts may consult in modified categorical inquiry)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifying divisibility and relationship between categorical and modified categorical approaches)