Jose Lozano Arredondo v. Jefferson Sessions
2017 U.S. App. LEXIS 14566
| 9th Cir. | 2017Background
- Lozano-Arredondo, an alien who entered in 1990 without admission, was convicted of petit theft in Idaho in 1997 and later applied for cancellation of removal under 8 U.S.C. § 1229b(b).
- The BIA held he was ineligible for cancellation because his petit theft qualified as an "offense under" 8 U.S.C. § 1227(a)(2)(A)(i) (crime involving moral turpitude within five years of admission and punishable by ≥1 year).
- The administrative record included only a rap sheet; it did not identify the specific Idaho theft statute subsection under which he was convicted.
- The Ninth Circuit found Idaho’s petit theft statute categorically overbroad for moral turpitude purposes and that the record was inconclusive under the modified categorical approach.
- The BIA had relied on its precedent (In re Cortez Canales) to treat the within-five-years element as inapplicable to § 1229b(b)(1)(C); the Ninth Circuit held the BIA erred by treating the statute as unambiguous and remanded for further agency consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Idaho petit theft is a "crime involving moral turpitude" under the categorical approach | Lozano-Arredondo: petit theft does not categorically involve moral turpitude because statute covers temporary takings | Government: the conviction qualifies as a moral turpitude offense | Held: Idaho petit theft is categorically overbroad; categorical approach fails |
| Whether the modified categorical approach shows his conviction was a moral turpitude offense | Lozano-Arredondo: record lacks statutory subsection and Shepard documents, so inconclusive | Government: rap sheet sufficed to identify offense | Held: record is inconclusive; rap sheet insufficient for modified categorical analysis |
| Effect of an inconclusive record on petitioner’s burden to show he was not convicted of moral turpitude | Lozano-Arredondo: an inconclusive record should favor the petitioner (post-Moncrieffe) | Government: under Young petitioner bears burden and loses if record inconclusive | Held: Ninth Circuit does not resolve Young v. Moncrieffe conflict here; remands so BIA can apply controlling panel decision when available |
| Whether § 1229b(b)(1)(C)’s reference to an "offense under" § 1227(a)(2)(A)(i) incorporates the within-five-years element | Lozano-Arredondo: § 1229b(b)(1)(C) should incorporate all elements, so his post‑admission ( >5 years) theft does not bar cancellation | Government/BIA (Cortez Canales): "offense under" means the underlying crime only (exclude immigration-timing element) | Held: statute is ambiguous; BIA erred at Chevron step one by treating it as clear; remanded for the BIA to reconsider under Chevron step two |
Key Cases Cited
- Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2015) (Idaho theft statute overbroad re: moral turpitude)
- Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) (theft and moral turpitude analysis)
- Mendoza v. Holder, 623 F.3d 1299 (9th Cir. 2010) (categorical approach framework)
- United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (modified categorical approach / Shepard documents)
- Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (burden rule: petitioner must prove not convicted of moral turpitude)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (impact on inconclusive-record burden allocation)
- Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004) (interpreting "convicted of an offense under" cross-references)
- Cortez Canales (In re Cortez-Canales), cited via BIA precedent (treated as Chevron issue in opinion) (agency decision reviewed and set aside for failing to address ambiguity)
- Negusie v. Holder, 555 U.S. 511 (2009) (agency must exercise Chevron step-two discretion; deference limits)