Aracely Marinelarena v. Jefferson Sessions

hоwever, point, hurting him. At no MARINELARENA, Petitioner, Aracely to

Chung stop take action assault. any Thus, jury Chung knew could find hurting Bracken security guards were Attorney III, B. Jefferson SESSIONS deliberately nothing chose to do about Respondent. General, (“The it. See id. indiffer deliberate requires ... that the defen ence standard No. 14-72003 of, willfully knowledge or dant have actual harm.”). short, Appeals, a rea States Court ignore, impending United Chung on Circuit. find liable Ninth jury sonable could theory. The district failure to intercede Argued April by granting therefore sum court erred mary judgment Chung to on Bracken’s due August Resubmitted Pasadena, process claim.8 California August

Filed III. Conclusion qualified is un- immunity

We hold Chung, to and that reasonable

available

jury Chung failing to could find liable the harm to which he against

intercede

exposed Bracken. AND REMANDED.

VACATED appeal Appel- are

Costs awarded

lant Bracken. (1996). does court the dan- 135 L.Ed.2d 392 Bracken

8. The district did not address ger-creation exception. granted summary appear con- the district court’s It contest regarding excep- judgment the "fellow-officer” on the failure to intercede claim clusion tion, danger-creatiоn addressing only relying on the police instead a different “route ("The See, Opening "po- exception. e.g., Br. at 16 liability” for officer failure to intercede: duty ... when to intercede cause lice officers intercede essence a failure [’] deliberate indifference off[i]cer’s fellow officers the constitutional action is the their violate rights suspect exposure to a known risk that other citizen.” United the victim’s action.”). Thus, Koon, officer’s was increased States 1447 n.25 1994), part grounds by fellow-officer do address rev’d in on other States, applies exception Koon v. United here.

OPINION GRABER, Judge: Circuit Marinelarena,. Aracely Petitioner a na- Mexico, tive and citizen of stands convicted conspiring transport sell -and a con- trolled substance in violation California 182(a)(1). Penal Code section After the Knapp (argued), Supervising Andrew pro- federal initiated rеmoval Attorney; (argued), Laura Free Isis Mi- ceedings, removability she conceded but (argued), Lilit Eric M. Arabyan, randa applied removal Students; Sowatsky, Certified Law South- T229b(b). immigration judge School, Angeles, western Law Los Califor- (“IJ”) denied of relief. The Board Immi- nia; for Petitioner. (“BÍA”) gration Appeals held that Petition- (argued), Attorney; Tim Ramnitz Jenni- er of meeting had fallen short her burden Counsel; Levings, Litigation fer P. Senior proof, by of failing to' show her convic- Goad, Director; Shelley R. Assistant Office tion was not for a disqualifying controlled Immigration Litigation, Division, Civil offense, ap- substance and dismissed the Justice, Department United States peal. conspiracy holdWe that the statute D.C.; Washington, Respondent. under which Petitioner was convicted divisible, that overbroad Petitioner Brian (argued), Goldman Orrick Her- but to carry failed her to LLP, rington Francisco, & Sutcliffe San demonstrate that her conviction California; Vargas Manuel and Andrew federally substance, involve controlled Wachtenheim, Immigrant Project, Defense that she and has failed exhaust York, York; Jayashri New New Srikantiah argument expungement her convic- Weissman-Ward, Lisa Immigrants’ and immigration consequences. erases its Clinic, Clinic, Rights Legal Mills Stanford Accordingly, deny petition for re- School, Stanford, California; Law for Amici in in part part. view it dismiss Immigrant Project, Curiae Ameri- Defense Association, Immigration Lawyers can ’ Advancing Asian Americans Justice-Asian FACTUAL AND PROCEDURAL Caucus, Community Legal Law Services BACKGROUND Alto, Network, East Palo Detention Watch Petitioner first entered the United Immigrant Refugee Rights Florence inspec- in 1992 States without admission Project, Heartland Alliance’s National Im- tion. In she false Center, migrant Legal Immigrant Justice officer, personation public in violation Center, Resource National Immigration section 529. In California Penal Code Center, Immigration Projеct Law National 2006, the of California filed a crimi- State Guild, Lawyers of the National Northwest complaint against nal Petitioner Counsel, Immigrant Rights Project, Public charged her one count of conspiring Immigration and U.C. Davis Law Clinic. to commit a in violation of felony, Califor- 182(a)(1). Specifi- nia Penal Code section TASHIMA, A. Before: WALLACE cally, conspiring charged Petitioner with SILVERMAN, BARRY P. G. SUSAN a controlled ‍‌‌‌​‌​​‌​‌‌​‌​‌‌‌​​​‌​​​​‌‌​​‌​​‌​‌‌‌‌​​‌​‌‌‌​​​‍transport sell and sub- GRABER, Judges. Circuit stance in violation of California Health and Safety The by Judge Dissent Code section 11352. criminal TASHIMA eligible despite for relief overt acts in fur- that she was her alleged several complaint con- conspiracy, personation one of which— for false of the convictions therance bags containing a controlled transportation spiracy transport three to sell and particular to a controlled IJ noted that Petitioner’s heroin —referred substance. The pursuant to personation On March false conviction under Califor- substance. guilty, appeared Petitioner was convicted plea nia Code section Penal Penal section violating involving turpi- California Code qualify as a crime moral 182(a)(1). 1227(a)(2)(A)®. The state court sentenced her § tude under U.S.C. years’ and three days’ imprisonment conspiracy IJ also noted Petitioner’s probation.1 California Penal Code conviction under 182(a)(1) conspiracy “for to distrib- section later, served days Two ute heroin” barred her from relief because appear a notice re- Petitioner with disqualifying substance it was controlled charged Pe- proceedings. notice moval Lastly, although offense. both convictions removability as an alien who titioner with vacated, the IJ held be- had been States'longer remained the United had the convictions not vacated cause were permitted, violation of 8 U.S.C. than merits, they valid for immi- remained 1227(a)(1)(B). conceded re- Petitioner gration purposes. applied for movability but 1229b(b). removal under 8 U.S.C. On the BIA held that Petitioner appeal, time, sep- Around the same Petitioner filed conspiracy to that her failed establish had state court to arate motions in vacate her qualify as conviction did a controlled personation conspiracy and convic- false substance U.S.C. Penal section tions under California Code 1182(a)(2)(A)(i)(II). explained § BIA The 2009, granted 1203.4. In California courts that, although California Health Safe- motions those Petitioner’s and vacated ty than the Code section 11352 is broader convictions. Act, Federal Controlled Substances § the state law covers because hearing in

At a removal Petitioner definition, drugs more than the federal argued conspiracy that hеr conviction did identify- no Petitioner submitted evidence a controlled substance of- constitute and, ing controlled substance there- by fense as defined Controlled Sub- fore, proof. not meet her did burden Act, 21 U.S.C. because stances BIA not reach the IJ’s additional rul- did specify conviction documents do ing personation con- that Petitioner’s false controlled substance. Petitioner also ar- turpi- involving viction a crime moral was eligible for gued that she cancellation expungement tude. Nor did reach of removal because her convictions had question, Petitioner not raise because been vacated. BIA. briefing it in her the IJ that Petitioner held had timely petitions Petitioner for review. to meet her failed demonstrate granted by group a motion eligibility for also removal and We joint entities to file a amicus her interested ordered removed Mexico. IJ brief. that Petitioner failed to reasoned had show CRIME, hearings, PENAL CODE MIT A in violation of At her removal Petitioner submit- 182(a)(1),” specifically, conspiring complaint SECTION ted to the IJ and admitted solely AND TRANS- commit the crime SELL she was Count of the “to "convicted PORT, alleged 11352 of the Complaint," in violation Section that she had com- HEALTH AND SAFETY Code." "the crime of CONSPIRACY TO COM- mitted (internal omitted).

STANDARD OF quotation REVIEW marks That result analysis. would end our questions review de novo of law and We Holder, claims. constitutional Coronado ifBut the offenses are not a cate 2014). F.3d gorical match, proceed to a second step, asking por whether the overbroad DISCUSSION tion of the statute is “divisi ble,” meaning A. Controlled Substance that it “sets one out or more Offense of the elements offense in the alternative.” eligible To be for cancellation of removal *4 (quoting Descamps v. United 1229b(b), under 8 U.S.C. a petitioner States, 2276, 2281, 133 S.Ct. (1) following requirements: must meеt the (2013)). 186 L.Ed.2d 438 will “consult We physically present in have been the United ‘authoritative sources state law’ de period States a continuous not less termine whether a statute contains alter years immediately than 10 preceding native defining multiple elements crimes (2) application; person been date have alternative means which a defendant good during moral that peri- character might commit (quot the same crime.” Id. od; (3) of, appli- not have been convicted — ing States, Mathis United here, offense; cable controlled substance —, 2243, 2256, 195 L.Ed.2d (4) show that removal cause would (2016)). are Elements “those circumstances “exceptional extremely unusual hard- jury unanimously which the must ship” family to a member who is citizen agree.” Vega-Ortiz, United States v. lawfully of the or an alien United States 2016). If the for permanent admitted residence. Our divisible, proceed may statute “then we analysis сoncerns the third requirement— step analysis apply the third in our petitioner that the not have been convicted categorical approach.” the modified Mar of a controlled substance offense. *4, 3203552, tinez-Lopez, at 864 2017 WL To a con determine whether state categori F.3d at 1039. Under modified qualifies relating viction as an offense to a cal approach, judicially “we no examine controlled as defined substance under fed ‘to ticeable documents conviction deter law, employ categorical eral we statutory mine phrase which was the basis categorical approaches set forth for (quoting Des conviction.’” States, 575, Taylor v. 495 United U.S. 2285). camps, 133 at S.Ct. 2143, (1990). 110 S.Ct. L.Ed.2d “First, short, ask only we whether state law is a when a state statute categorical match with a is [con federal both overbroad and divisible do em offense,” “only looking ploy categorical trolled approach. substance] the modified We ‘statutory by examining to definitions’ the corre do so certain conviction-re sponding documents, offenses.” v. including charging United States Mar lated “the 14-50014, 1034, tinez-Lopez, document, plea agreement No. 864 F.3d terms of a 1038, 3203552, transcript judge 2017 WL at *3 or colloquy between 28, 2017) (en banc) July (quoting Taylor, basis defendant which factual 2143). 600,110 at “If a state by U.S. S.Ct. the defen plea confirmed dant, proscribes law the same amount of or less comparable judicial or to some rec than that conduct as a federal ord of this States v. qualifying information.” United offense, 1160, Leal-Vega, then the [controlled substance] 680 F.3d 2012) (internal omitted). categorical two offenses are a match.” Id. quotation marks agree spiracy target We with Petitioner that California statute as to the is divisible 182(a)(1) .overbroad, is incorpo Penаl Code section crime.2 Faced with statute that “any” by reference, categorical rates crime meaning approach that California we must con- “consult' ‘authoritative sources of apply. But Petitioner also does indivisible, law’ whether state to stat pre- [the] determine tends that the statute ute defining contains alternative elements cluding approach, the modified multiple or by crimes alternative means qualify a con- cannot as therefore might which a commit the defendant same disagree. We trolled substance offense. crime.” Martinez-Lopez, 2017 WL Approach Categorical 1. *4, (quoting Mathis, at 1039 2256). 136 S.Ct. at key Penal California Code section jury must find the purported 182(a)(1) punishes range a broader con Here, element specifically. the California duct than either supplied the Supreme Court answer. has 1227(a)(2)(B)®. § § 1182(a)(2)(A)(i)(II) or jurors A sec California requires agree defendant be under law to could 182(a)(1) conspiracy, any unanimously object on crime of criminal conspiracy. controlled “Under Penal section whether or not relates a- Code jury which.felony section the substance. also A conviction must determine under commit, therefore, 182(a)(1), conspired cannot count con defendants felony degrees, into offense divided trolled cate substance under See, degree of felony they conspired, gorical e.g., v. approach. United States Horn, 12 People Trent, Cal.3d 1046, 1062 commit.” Cal.Rptr. 516, 524 P.2d under (holding conspiracy conviction (1974) (emphasis added); People see also 421(A)—a Okla. Stat. Ann. tit. tat s Smith, 603, 180 Cal.Rptr.3d 60 Cal.4th ute with text similar to the of Cal. text (2014) (“A 337 P.3d 182(a)(1) serious Penal Code —is of conspiracy requires proof the de categorical ap drug fendant person specif and another had proaсh statute be vio because “the could ic intent to agree conspire commit an many ways to do nothing lated-in that have — offense, specific as 'well as the intent denied, drugs”), cert. with —, 135 offense, coinmit the elements to (2015), L.Ed.2d 400 gether of the commission of an Mathis, abrogated grounds other overt act of the conspir furtherance S.Ct. at added) (internal (emphasis acy.” quotation . . Divisibility 2 omitted)) marks 182(a) criminalizes Section the act on a Petitioner relies California Court (1) case, persons conspire: Vargas, “two or more Appeal People [who] v. 91 Cal. added.) To (2001), any App.4th Cal.Rptr.2d commit crime.” 210 to (Emphasis Here, 182(a)(1) argue con must consider whether the we that is indivisible. section Garcia-Santana, footnote, opinion conveys 2. 774 F.3d at In the United States a that 2014), requirement not analy Cir. does affect our omission of act the an overt can statute, cоnspiracy sis of the by be resort the cured to modified cate Califor divisible, 182(a)(1), gorical approach nia Code section is to show an Penal that overt act case, conspiracy proved given held Nevada's Garcia-Santana that was in a at n.3. As statute, 199.480, text, Rev. Stat. is over- in an Nev. we discuss below overt act is a contain, requirement it does ele conspiracy broad because an un as for act, ment, Garcia-Santana, overt F.3d der Galifornia law. an approach, in Vargas, In the court considered whether examine specif- the we on unanimously ics of jurors agree all The only must the Petitioner’s conviction. doc- multipurpose conspira ument in relating crimes of the object to record a con- cy, enough jurors or if it to agree for trolled substance is the criminal.complaint, crime, generally, object target that thе which shows that offense opinion conspiracy conspiracy. Id. at 244-47. has was a violation California uncertainty jury to the unanimi Safety caused as Health and Code section 11362. multipurpose target That ty requirement conspira for lay- an adds additional See, er to cy e.g., analysis, convictions in California. our because .California Trent, (citing Vargas Safety is, F.3d at 1061 for section Health Code jurisdictions proposition respect some to the specific controlled sub- stance, “may” agree not require jury that “the itself overbroad but divisible crime to unanimously conspira what statute which the modified commit”). approach agreed tors to applies. Martinez-Lopez, 2017 *4-7, WL at F.3d 1039-43. California Court of Whatever- the convey Vargas, in Appeal intended The criminal complaint identifies trans Supreme recog California has never Court portation of heroin describing in one jury unanimity exception nized a multi overt acts alleged part charged of the task, purpose conspiracies. Our when an conspiracy; no drug other in mentioned law, swering question is to of state follow the complaint. criminal Heroin is a con precedents highest state’s of the court. trolled substance See under federal law. Carpenters See Joiners United Bhd. & 802(6) (defining sub “controlled NLRB, Am. Local 586 v. by stance” statutory sched reference 2008) (“In analyzing ques ule); (b)(10) § 812, 21 U.S.C. Schedule I law, by tions state are bound I). (listing so, heroin on Even Schedule court.”); highest decisions the state’s record in of. this case inconclusive. Int’l, Inc., Ticknor v. Hotels Choice conspiracy plead count to which Petitioner (“[F]ederal 2001) F.3d guilty identify particular ed does not pronouncements courts are bound except in controlled substance the list highest applicable court on state’s agreement, overt But no plea acts. there is assessing state law.... ‍‌‌‌​‌​​‌​‌‌​‌​‌‌‌​​​‌​​​​‌‌​​‌​​‌​‌‌‌‌​​‌​‌‌‌​​​‍a state’s how plea judgment,' other colloquy, docu highest'court resolve state law would ment reveals the record that factual controlling state authori guilty plea. basis Petitioner’s Because —absent existing ty courts look state guilty plea' Petitioner’s could have rested —federal changes potential law without predicting on an overt relate act (internal marks omit law.” quotation heroin, conclusively we cannot connect the ted)). Supreme Because California transportation of heroin with her convic agree on requires spec Court jurors Ashcroft, tion. See Lara-Chacon object ified crime order convict a 1148, 1152(9th (noting that person of California Penal conspiracy, “[c]harging are papers alone never suffi 182(a)(1) Code section is divisible. of cient” to the' elements convic establish omitted)); (internal tion quotation marks Categorical Approach 3. Modified Velasco-Medina, 305 United States v. F.3d 2002) (noting that a Penal sec Because California Code 182(a)(1) charging ele “contain[s] is overbroad and divisi document both ble, proceed categorical set/s] to ments of crime we approach is “a prove; it

out to establish der the [does] necessarily conviction of the state offense petitioner] to which admitted [the elements generic to the plea”). equating facts guilty [the] in his involved (empha- at 1684 federal offense.” 133 S.Ct. record, is On an inconclusive Petitioner added) (internal quotation marks and sis because, ineligible respect for relief with omitted). they inquiry, as- brackets That relief, the burden eligibility for she bears sert, question of law—-not purely proof to show that her conviction did fact—as to thе burden federally relate to a controlled substance. disagree as to the irrelevant. both We “If that one or more the evidence indicates to the na- and as relevance Moncrieffe grounds mandatory denial of the of the inquiry present in the context. ture alien application may apply, for relief Young, petitioner In was removable by proving shall the burden have ineligible and was found preponderance the evidence such conviction for on account his removal grounds apply.” do not 8 C.F.R. co- added). “sale/transportation/offer[ing] sell” 1240.8(d) (emphasis Young In v. base, felony. 2012) aggravated caine 697 F.3d Holder, an 697 F.3d of his at 980-81. The record conviction was (en banc), “petitioner that a cannot held aggravated concerning the fel- inconclusive demonstrating eligibil- carry the burden Because, in REAL ony designation.3 by ity for cancellation of removal establish- Act, Congress “place[d] ID burden of conviction.” ing an inconclusive record for cancellation of demonstrating eligibility argues Petitioner that we must overrule noncitizen,” at squarely on the id. removal aspect Young is irrecon- because petitioner had the we held that Supreme cilable a later United States that he not com- to establish had burden case, Holder, Court Moncrieffe 989; at see aggravated felony, an id. mitted L.Ed.2d 727 1229a(c)(4) (“An ap- also U.S.C. alien (2013). turn to that pivotal We issue. from

plying protection for relief or remov- B. Burden peti- proof....”). al has the burden of of Proof and, satisfy his tioner failed to law, Young If good remains Peti therefore, ineligible for from relief ineligible for cancellation of re tioner inconclu- the record was removal because ambiguity in the moval because record Young, at 990. point. sive on this prevents proving her from that her convic case, sub tion did not relate a controlled Court Supreme the later guilty A petitioner pleaded possession stance as law. three- defined had federal may “reject marijuana in viola- judge panel prior opinion with [a] intent distribute Moncrieffe, 133 intervening Georgia tion of state law. of this court” and incon petition- BIA Supreme “un at found the sistent Court decision has 1683. having drug- reasoning underlying removable for committed a theory er dercut way trafficking punishable that is as a prior precedent circuit crime such felony Controlled clearly the cases irreconcilable.” under the federal Sub- are Act, Miller, making aggravated it an Petitioner and thus stances Id.; Holder, felony. see also this standard is met Amici contend (ex- because, Moncrieffe, inquiry un- 662 F.3d 389-90 offense, aggravated were pleaded guilty of which felo- petitioner 3. The to a some had Young, alleged which were charging different nies some of not. document that of how he could have committed the F.3d at 990. theories See, plaining in the being point. e.g., the issue case as ex rel. Schaffer Schaffer Weast, petitioner 528, was whether the removable as 126 S.Ct. crime). having that, charged (2005) for this (holding committed under L.Ed.2d Supreme Court asked and answered the Individuals with Disabilities Education Act, the the question petitioner’s con- party whichever seeks relief must car- categorically viction could be considered ry persuasion, the burden of whether it be aggravated felony the Dir., when Controlled district); parents the or the school punishes analogous Substances Act of- the Programs v. Comp. Workers’ of Office felony as both a fense and misdemeanor. Collieries, 272-81, Greenwich at 1684-85. The Court held (1994) L.Ed.2d not petitioner was removable because that, (holding the Administrative he not of an aggravat- had been convicted Act, proof Procedure of encom- burden felony; applying ed ap- passes the burden when the persuasion; proach, the Act Controlled Substances did balanced, party is evenly evidence not as a “necessarily” punish felony all the lose). must the burden Moncrieffe proscribed Georgia conduct under the stat- cite, overrule, let similar alone those and ute. at 1686-87. recognizing cases the effect burden proof is in when relevant evidence Young from differs be Moncrieffe because, equipoise. That is as discussed cause, reasons, among other the two cases below, is not about the burden Moncrieffe entirely legal' different address issues. proof. question addressed wheth removable, er petitioner question was law, Supreme Under Court when evi as to which the bears the bur per is in equipoisе, dence the burden Young proof. Mukasey, den of Sun Shin suasion is it determines outcome. Nor 2008). By problematic that the inconclusive evi same contrast, portion Young the relevant on decision dence can result a favorable only addressed whether the yet an unfavora removability (Moncrieffe) petitioner eligible for cancellation of (Young). ble on See decision cancellation that question, As to removal. nonciti- Perez v. Kennel Alvarez Sanford-Orlando zen, government, not the bears the burden Club, Inc., 1164-65 F.3d 1229a(c)(4); § proof. U.S.C. C.F.R. 2008) findings (noting that two factual 1240.8(d). Congress, Thus it is not the logi given that “it were inconsistent Court, Supreme assigned the burden possible losing for the have cally side of proof to a noncitizen who relief in seeks with, on, depended it varied because the form of cancellation of See 8 removal. proof’); States v. burden United cf. 1229a(c)(4) (“An applying aliеn Meza-Soria, protection for from removal has relief (noting “courts have made proof burden establish that the different stan quite clear because eligible.). opinion alien” is The Moncrieffe involved, acquittal in proof are dards of anywhere, does not cite that statute criminal action bar a civil suit does not noted, good As the issue reason. before (internal quota same facts” based removability, Court concerned re omitted)). marks and brackets lief from removal. Young, Tenth joined the Fourth and par recognizing

It is bur established that the Circuits in when the well ty persuasion who bears the loses if rests on the noncitizen den the record is inconclusive on crucial of re eligibility to show 790 “[cjonviction goes: is

moval, the rele record fails satis an inconclusive Moncrieffe (citing statutory determining F.3d at 989 hook” whether fy vant that burden. (4th Holder, 111, 115-16 removability eligibility or for relief from Salem v. Holder, (internal v. 2011); Garcia F.3d quotation Cir. Id. removal. 2009)); Cir. see also omitted). 1289-90 But did not marks Moncrieffe U.S., Att’y Gen. F.3d Sybils v. in the differences discuss the burden 2014) (3d (reaching the same contexts; Cir. 356-57 proof those two had no v. conclusion, Sanchez post-Moncrieffe); contrary, to. To the the Court limit reason n.6 Holder, F.3d its-rejection government’s sug ed of the 2014) (same). Lynch, But see Sauceda v. a gestion that noncitizen have an should 526, 531, (1st n.10 532 & F.3d disprove opportunity misdemeanor Young holding that (rejecting and Georgia of the statute to the cate version that a presumption creates gorical “This is entirely context: solution Moncrieffe of the the “least defendant committed inconsistent with both the INA’s text [8 Shepard when goes unrebutted acts” 1229b(a)(3)] 1227(a)(2)(A)(iii), §§ light no on the nature of documents “shed categorical approach.” Moncrieffe, and the conviction,” in the can even or added). ‍‌‌‌​‌​​‌​‌‌​‌​‌‌‌​​​‌​​​​‌‌​​‌​​‌​‌‌‌‌​​‌​‌‌‌​​​‍(emphasis at 1690 Mon S.Ct. context).4 cellation-of-removal therefore be read to inform cannot crieffe sure, acknowledged To Young, be dispute per the relevant Moncrieffe determining for analysis its only to the of the operation tained burden categori of conviction crime is particular categorical ap when proof the. modified involving turpitude moral “is cally a crime proach applies.5. removal cancel and both” same reasons, For these all Moncrieffe (citing 133 S.Ct. at 1685 n.4 lation contexts. Young clearly are not irreconcilable. Holder, Carachuri-Rosendo equally unpersuaded by are Petition We (2010), 177 L.Ed.2d argument er and Amici’s that the modified petitioner

which considered whether only legal categorical approach involves eligible removal was inquiry burden simple posses having after committed two law). Descamps. after Texas state irrеlevant sion And offenses Moncrieffe noted, true, so far as the in As decide discussion did designed proach Lynch, to avoid” inconsistent In Le 2016), "[n]otwithstanding the court held of “two noncitizens ... ‘convicted treatment case, in the the inconclusive evidence instant Moncrieffe, of’ the offense." 133 S.Ct. at same petitioner] remains on [the ... Court made that in the 1690. The .comment eligibility relief from But prove removal.” categorical approach, applying context there, ambiguity rest divisible categorical approach. not the And statute, court decide and the declined overruling Young proposed Amici’s solution— courts affected how "whether Moncrieffe allowing relief when the of convic record categorical ap apply the modified should .ambiguous not eliminate the tion —would prior convic proach to whether a determine opportu prospect of inconsistent results: disqualifies from relief noncitizen from individuals, given nity for of of a is am removal record of conviction when the fense, vary depend to obtain relief would still biguous the elements of the as to whether clarity, only ing on the default record’s correspond disqualifying crime to a offense.” change. rule rule would Such a therefore at 107 n.5. not ameliorate Amici’s concern about would similarly is clearly Young inconsistent treatment situated also 5. Amici contend that persons. of the because irreconcilable with Moncrieffe ”[t]hp categorical ap statement that latter’s suggest anything conviction, even about of the prior the of any burden a fact that fact proof. Descamps, part, for its not inti increases the penalty for a beyond crime - every mate that inquiry under-the modified prescribed the. statutory maximum must law; categorical question of approach is jury, be to a proved beyond submitted and simply categorical held that the modified added)). reasonable (emphasis doubt.” “a approach implementing tool reviewing questions When mixed of law and, therefore, categorical approach” could fact, regularly and we consider the burden applied not be to indivisible 133 statutes. See, persuasion. e.g., of Dorrance v. United 2284, at 5.Ct. 2286-87 . States, (9th 2015) 479, 809 F.3d Cir. Although categorical ap the modified question that the taxpay whether (stating proach, like approach, in ers had a they cost basis assets that strictly legal volves some issues—such as a sold, later but for they paid which nothing, divisibility- inquiry statute’s -into —the “is a mixed of law and fact” as to question part of which statute underlies divisible taxpayers bear the of burden petitioner’s is, of conviction crime persuasion); United States v. Arreguin, faсtual, not at least of question a mixed (9th 1168, 735 F.3d (noting questions law and fact.6 of “[MJixed law that of person “[t]he issue whether a has and fact” are those which “the historical or apparent authority actual to consent to established, facts are the rule admitted a search question is a of mixed and law of is undisputed, law issue is and the fact” that “the has the satisfy statutory whether the facts of establishing burden effectiveness Swint, standard.” Pullman-Standard v. party’s search”); third consent to a Unit 273, n.19, 456 U.S. Blackman, ed States v. 72 F.3d (1982). categori L.Ed.2d 66 The modified 1995) (stating that review de approach cal squarely fits within that defi novo rulings the district court’s on the Descamps, nition. See at 2284-85 S.Ct. scope of attorney-client privilege be that, (explaining under the modified cate they cause questions involve “mixed of law gorical approach, may ap courts review and fact” of persua and that the burden “extra-statutory proved ... [to] materials sion party seeking is on the to establish statutory phrase discover which contained privilege that applies); United States listing within a statute several different 632, 636, Lingenfelter, 997 F.2d (in prior crimes[] covered conviction.” 1993) (stating police con quotation omitted)); Taylor, ternal marks amounts to a “search” duct within (holding S.Ct. 2143 meaning of the Fourth is “a Amendment categorical approach, mixed law “look fact” only courts to the that the defen fact the defendant bears the of demon dant had been of’ certain crimes added)); strating legitimate that he or (emphasis she had a Apprendi see also Jersey, expectation New privacy place 435 (2000) (“Other searched). 147 L.Ed.2d than issue, prior 6. At least one other has conviction is at circuit held that alien’s determination, determination of the offense of is a conviction itself is a faсtual Le, purely inquiry. See However, factual F.3d at 105 legal determining not a wheth- one. ("[T]he alien has the burden to estab- particular type ge- er that conviction is a eligibility lish he applicable satisfies the legal question.” (emphasis neric offense is a requirements any prove in order added);(citations omitted)). grounds apply. do When an denial recognition subse summarize, “preclud[ing] re- To is about Moncrieffe contrast, expungements rehabilitative moval; Young quent state is about can- convictions”). cellation removal. discusses categorical approach works when how present that claim Petitioner did involving turpi- moral defining a crime BIA, lack and it is exhausted. We says nothing opera- at all about tude jurisdiction claim. See over an unexhausted proof, the burden which was Ashcroft, Barron v. Young not an issue that case. discusses 2004) (holding that Cir. U.S.C. proof apрlying of the burden when the 1252(d)(1) § and “mandates exhaustion e Although categorical approach. us, modified of for lack generally therefor bars Descamps clear that the makes modified reaching subject-matter from jurisdiction, “a for categorical approach imple- is tool legal presented of a not merits claim the menting categorical approach,” 133 the below”). Ac proceedings administrative 2284, requires it a tool that at S.Ct. expunge the cordingly, we must dismiss the of factual consideration documents ment claim.8 and, by the law within context IN DENIED PART and DIS- Petition proof rele- process, makes the burden IN PART. MISSED Thus, nor Des- neither vant. Moncrieffe requires Young. camps us overrule TASHIMA, dissenting: Judge, Circuit clearly are not irreconcil- The decisions Young v. Hold majority The holds able. (en er, 2012) banc), F.3d clearly good remains law because C. Expungement Holder, irrecоncilable with v. Moncrieffe 185 L.Ed.2d Finally, argues that Petitioner (2013). Maj. Op. Young, at Under expungement of her 790. conspiracy conviction 727 must that she prove from the Marinelarena removes it definition “convic 1101(a)(48)(A).7 § of a substance offense tion” controlled can pur eligibility her for challenges order establish Specifically, she deference Because record is interpretation cellation removal. BIA’s 1101(a)(48)(A). majority ambiguous point, this rea Murillo-Espinoza v. on See 2001) sons, INS, satisfy her bur cannot Marinelarena ineligible is thus for den of (adopting interpretation the BIA’s U01(a)(48)(A) Roldan, disagree I ma relief. Id. at with the in In re 22 I. & 787. (B.I.A. 1999) (en banc), does jority’s conclusion that N. Dec. as 1101(a)(48)(A) requirement, rejected a provides: we have similar Section 7. means, argument Reyes Lynch, merits. See term with re- "conviction” alien, spect guilt judgment (holding an formal a or, by adjudi- of the alien entered a cоurt though aside even California court set a withheld, guilt cation of been where— has petitioner’s plea, earlier nolo contendere (i) judge jury guilty or has the alien found expunged under state law "state plea guilty or the alien has entered or eligibility for purposes conviction for still a nolo contendere has admitted sufficient adjustment of of removal and (ii) finding guilt, facts to warrant status,” petitioner was never even when the judge punish- form of has ordered some incarcerated, pun- because “the alien was ment, penalty, or on the restraint alien's liberty by or his ished was restrained liberty imposed. to be probation”). terms of his agreed 8. if we with Petitioner that this Even qualifies exception claim for an to the exhaus- abrogate Young. Moncrieffe, Under zen of by examining was convicted ambiguity instructions, in the record as Marinelare- charging jury document and offense of conviction that she or in the guilty plea na’s means case of a plea, the agreement, plea colloquy, compa- has not committed an offense or ‘some disqualifying I respectfully judicial her from relief. rable record of the dissent. factual basis added) plea.’” Id. (emphasis (quoting Moncrieffe, Supreme Court ex Nijhawan Holder, plained applying the framework (2009)). L.Ed.2d categorical approach to determine whether Court inquiry labeled this a whole “the aggravated a noncitizen has committed categorical approach,” as opposed to dis- felony, Immigration as defined tinguishing between the Nationality Act. 133 S.Ct. at 1684-85. In categorical approaches. applying categorical approach, cases compare the courts elements a nonciti- In Moncrieffe, argued zen’s offense of conviction to those of a that petitioner the had committed “felo generic disquali that federal offense would ny punishable under the Controlled Sub from fy Descamps her relief. v. United (“CSA”), stances Act” qualifies which as an States, 2276, 2283, 133 570 U.S. S.Ct. aggravated felony that would allow the (2013). 186 438 The Court in Mon L.Ed.2d petitioner to deported. Moncrieffe, be 133 that, specified categorical the crieffe S.Ct. 1683. disagreed. at The Court Id. at approach, ‘not to courts should “look the 1684. The record that Mon established case,’ in particular prior facts the but crieffe been had convicted under state defining to whether ‘the state statute stead proscribing statute conduct that consti fits categorically the crime conviction’ CSA, tutes an offense under the but the ‘generic’ within the federal definition of a ambiguous was as to whether the record corresponding aggravated felony.” Mon “ ‘necessarily’ presсribe CSA felony would (quoting at crieffe, 133 S.Ct. 1684 Gonzales punishment for at that conduct.” Id. Duenas-Alvarez, 183, 186, added). (emphasis The Supreme Court (2007)). S.Ct. L.Ed.2d “[A] “[a]mbiguity held point that this means is categorical state offense match with a ‘necessarily’ that the conviction did not ‍‌‌‌​‌​​‌​‌‌​‌​‌‌‌​​​‌​​​​‌‌​​‌​​‌​‌‌‌‌​​‌​‌‌‌​​​‍general only if federal offense a conviction correspond involve facts that to an offense ‘necessarily offense the state involved punishable felony under the CSA.” general equating ... facts [the] [federal categorical approach, at “Under the added) (emphasis (quoting offense].’” Id. then, of an Moncrieffe was convicted States, 13, 24, Shepard v. United U.S. aggravated felony” allowing him to be de (2005) S.Ct. L.Ed.2d ported. Id. (plurality opinion)). nonciti “Whether the analysis clearly This irreconcilable zen’s actual involved facts is conduct sueh ambiguity in Young. Young that holds ‘quite (quoting irrelevant.’” Id. United as to whether the noncitizen record Uhl, ex rel. States Guarino aggravated felony means committed (2d 1939)). that she was offense for convicted that, immigration The Court further if a stat- purposes stated statutes. multiple, Young, ute contains alternative versions at 988-99. Moncrieffe (that is, categori- a crime If opposite: modified holds the the record does may approach applies), conclusively cal “a court establish that noncitizen deter- offense, particular mine the nonciti- which offense committed the she was then purposes the offense for (2013). statutes, L.Ed.2d Moncrieffe, 133 immigration S.Ct. Thus, Moncrieffe, in the Court

at 1687. outlined “categorical” both what we have called majority’s the con arguments The step of the and the “modified analysis majority trary unpersuasive. are first analysis, categorical” and then step control does not as a whole “the inquiry contends cate labeled the Monmеffe gorical approach.” Moncrieffe, 133 because wheth “addressed (outlining the categorical 1684-85 removable, a question er petitioner categorical analysis stating modified bears as which the the bur long “[t]his.categorical has a approach e proof,” whil this case concerns den of - Nation’s pedigree immigration our removal, appli for which an law”). inquiry That is because relevant proving eligibility. cant the burden of bears in,both categori categorical modified But Maj.Op. at 789. itself A cal same: court must cases com distinction, this explicitly ex forecloses pare of the offense elements plaining “analysis-.is convictbd the ele noncitizen was the same both removal cancel of genexic disquali [the ments federal relief, fying her from and then determine Moncrieffe, of removal] contexts.” lation necessarily estаblished what facts are added). (emphasis n.4 133 S.Ct. at 1685 only be conviction. difference' Moncrieffe, ap the framework for' Under approaches tween two modi categorical and cate plying the cases, a categorical fied “mul statute lists depend on gorical approaches does crime,” tiple, [a] alternative versions proof a party which bears the Descamps, so S.Ct. at the court particular immigration proceeding. kind of must look to the record . particular determine “which. offense the sidesteps explicit in The this majority Moncrieffe, of.” was convicted noncitizen by arguing struction that Moncrieffe 133 S.Ct. at determination 1684. Once that categorical “to holding “limited” its. the made, the is the same relevant Maj. Op. at 790-91. Per the context.” A cases: court categorical as that in must be majority, therefore cannot “Moncriеffe ask the noncitizen’s conviction neces what dispute in relevant read involved, inform “not what acts nonciti sarily [the oper: Young, pertained only committed.” Id. at 1685. zen] — burden of when ation of.the States, In Mathis United applies.” categorical approach —, 136 S.Ct. 195 L.Ed.2d modified omitted). (2016), (footnote Supreme Court reaffirmed that Maj. This Op. at 790 ¿nd categorical categorical modified dif purported distinction overstates approaches analysis. involve the same ference between Court “when a statute sets out stated As the approaches. modified categorical (or ‘indivisible’) single set elements to noted, Supreme the modified Court has crime,” single a court should define a imple categorical approach “a tool for alongside up crime’s elements “line[ ] menting categorical approach” generic see[] those of offense and a court examine allows “to limited statutes, they match.” Id. at 2248. “Some which of class determine documents (some however, complicated have more' formed alternative elements a statute’s ‘divisible’) structure, making times called prior convic of the defendant’s basis comparison of elements harder.” States, involving apply Cases such statutes Descamps tion.” v. United 570 2249. categorical approach. the modified Under INC., approach, sentencing

this LOS LAKERS, “a court looks to ANGELES (for example, class corporation, a limited of documents a California indictment, instructions, jury plea or Plaintiff-Appellant, agreement colloquy) to determine crime, elements, what what defen of.” Id. “The can

dant convicted court COMPANY, FEDERAL INSURANCE crime, compare then categori corporation, Indiana Defendant- commands, approach cal with the relevant Appellee. added).1 generic Id. (emphasis offense.” No. 15-55777 words, applies other whether a case what we have called the “categorical” United Appeals, States Court of categorical” approach, the “modified Ninth Circuit. analysis is the asks same: court necessarily the noncitizen was Argued and February Submitted of an disqualifying her Pasadena, California from If relief. conviction is record August Filed ambiguous point this this —as case—then her “conviction did ‘neces

sarily’ correspond involve facts to”

disqualifying Moncrieffe, offense. added). Thus, (emphasis

at 1687 under the categorical approach, Marinelare

na was convicted of a controlled sub

stance offense under federal law.2 grant

I petition respect- would

fully dissent. majority inquiry Although open question

1. The “the contends that into is an in our this part circuit, which of a divisible statute underlies the recently panel another has character is, petitioner's crime of not fac- Moncrieffe, "sug ized S.Ct. at tual, at least a mixed of law and gesting] record an inconclusive works inquiry requires fact” because the the court to petitioner’s advantage, regardless certain examine documents in the record of party proof,” bears the burden Lozano- Maj. Op. argument conviction. at 791. This Sessions, Arredondo v. 2017 WL point misses the mark. ‍‌‌‌​‌​​‌​‌‌​‌​‌‌‌​​​‌​​​​‌‌​​‌​​‌​‌‌‌‌​​‌​‌‌‌​​​‍The relevant 8, 2017) (citing Aug. *4 Almanza- categorical approach, modified Lynch, Arenas 488-89 only court looks at those documents to deter- 2016) (en banc) (Watford, J., concurring petitioner mine which crime the was convict- Almanza-Arenas, Judge judgment)). in the of, ed and whether elements that crime’s Young Watford noted "our decision generic disqualifying match those of a offense. fundamentally incompatible [is] with the cate purely legal inquiry. Descamps, This is a See gorical especially Descamps approach, after ("The approach 133 S.Ct. at 2293 clarified elements-focused sentencing does sub- not authorize court to Almanza-Arenas, inquiry.” nature of the inquiry stitute ... a facts-based ele- one.”). ments-based F.3d at 489.

Case Details

Case Name: Aracely Marinelarena v. Jefferson Sessions

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 23, 2017

Citation: 869 F.3d 780

Docket Number: 14-72003

Court Abbreviation: 9th Cir.