Case Information
*3
PREGERSON, Circuit Judge:
Petitioner Gabriel Almanza-Arenas (“Almanza-Arenas”) petitions for review of a Board of Immigration Appeals’s (“BIA”) decision affirming a final order of removal. The BIA held that Almanza-Arenas was ineligible for cancellation of removal because he was convicted of a crime involving moral turpitude. Almanza-Arenas was convicted under California Vehicle Code § 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude, and conduct that does not amount to a crime of moral turpitude. We hold that Almanza-Arenas’s California Vehicle Code § 10851(a) conviction was not for a crime of moral turpitude and does not render him ineligible for cancellation of removal. Thus, we grant Almanza- Arenas’s petition and remand to the BIA for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Almanza-Arenas is a native and citizen of Mexico. On September 12, 2000, Almanza-Arenas pled nolo contendere under People v. West , 3 Cal. 3d 595 (1970), [1] to a misdemeanor violation of California Vehicle Code § 10851(a). [2] California Vehicle Code § 10851(a) punishes both automobile theft (which is a crime of moral turpitude), and joyriding (which is not a crime of moral turpitude). The California Superior Court sentenced Almanza-Arenas to twenty-four days in county jail.
Five years later, on or about January 26, 2005, Almanza-
Arenas was taken into custody by a United States Customs
and Border Protection (“CBP”) agent at the Greyhound Bus
Station in San Diego, California, after “he admitted that he
was present in the United States without the proper
immigration documents to be or remain here legally.” On
February 1, 2005, the Department of Homeland Security
(“DHS”) served Almanza-Arenas with a Notice to Appear.
The Notice to Appear charged Almanza-Arenas with being
[1]
A plea under
People v. West
is “a plea of nolo contendere, not
admitting a factual basis for the plea.”
In re Alvernaz
,
[2] California Vehicle Code § 10851(a) provides:
Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.
6 A LMANZA -A RENAS V . H OLDER removable from the United States as an alien present in the country without being admitted or paroled, pursuant to the Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
On July 21, 2005, Almanza-Arenas appeared with counsel before an immigration judge (“IJ”) in San Diego. He conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1) [3] and voluntary departure under 8 U.S.C. § 1229c(b)(1). In his application for cancellation of removal, Almanza-Arenas disclosed his California Vehicle Code § 10851(a) conviction.
At a later hearing on November 3, 2005, DHS argued that Almanza-Arenas’s conviction disqualified him from cancellation of removal because a conviction under California Vehicle Code § 10851(a) is for a crime involving moral turpitude. To commit a crime of moral turpitude a “person must have behaved in a way that is inherently base, vile, or depraved.” Castillo-Cruz v. Holder , 581 F.3d 1154, 1160 (9th Cir. 2009) (internal citation and quotation marks omitted). At the same hearing, DHS also placed into evidence three state court documents: (1) a felony complaint charging Almanza-Arenas with a violation of California Vehicle Code § 10851(a), (2) a copy of Almanza-Arenas’s September 12, 2000 plea of nolo contendere pursuant to People v. West to a misdemeanor violation of California [3] To be eligible for cancellation of removal, an individual must: (1) have been physically present in the United States for at least ten years, (2) have been a person of good moral character during that period, (3) not have been convicted of a listed offense , and (4) establish that removal would result in extreme and unusual hardship to a qualifying U.S. citizen or permanent resident relative. 8 U.S.C. § 1229b(b)(1).
Vehicle Code § 10851(a), and (3) a judgment showing that Almanza-Arenas received a sentence of twenty-four days time served. DHS did not place into evidence the transcript of Almanza-Arenas’s plea colloquy for this conviction.
At the next hearing on February 16, 2006, the IJ asked Almanza-Arenas whether he was in the process of obtaining the transcript of the plea colloquy to show the basis of his *6 nolo contendere plea under California Vehicle Code § 10851(a). Counsel explained that he was not in the process of obtaining the transcript, but would try to obtain it. Later, at the merits hearing on November 1, 2006, the IJ noted that Almanza-Arenas did not present the transcript of the plea colloquy. Almanza-Arenas’s counsel argued that the reference to People v. West in the plea agreement indicated that the plea was made with “no admission to the facts,” and that the transcript of the plea colloquy was not necessary because it would be “consistent with” the documents the government had already submitted into evidence. The IJ denied Almanza-Arenas’s petition for cancellation of removal.
On April 13, 2009, the BIA published a decision affirming the IJ’s holding and dismissing Almanza-Arenas’s appeal. See Matter of Almanza-Arenas , 24 I. & N. Dec. 771 (B.I.A. 2009). The BIA held that, pursuant to United States v. Vidal , 504 F.3d 1072 (9th Cir. 2007) (en banc), the IJ properly requested the transcript of the plea colloquy from Almanza-Arenas’s California Vehicle Code § 10851(a) conviction. The BIA explained that there was “ambiguity in [Almanza-Arenas’s] conviction record resulting from the notation to People v. West .”
The BIA further explained that Almanza-Arenas “failed to meet his burden of proof to establish that he was not convicted of a crime involving moral turpitude” under 8 U.S.C. § 1229a(c)(4)(A)(i) and (B). The BIA concluded that Almanza-Arenas (1) “produc[ed] the inconclusive portions of a record of conviction,” and (2) “fail[ed] to comply with an appropriate request from the [IJ].” [4] Matter of Almanza-Arenas , 24 I. & N at 776.
Almanza-Arenas appeals the BIA’s ruling. We have jurisdiction to review questions of law in a petition for review of the denial of cancellation of removal. 8 U.S.C. § 1252(a)(2)(B), (D).
II. ANALYSIS
Whether a conviction is for a crime involving moral
turpitude is a question of law that we review de novo.
Olivas-Motta v. Holder
,
A. Almanza-Arenas’s State Statute of Conviction
California Vehicle Code § 10851(a) criminalizes the act
of driving or taking a vehicle not one’s own, “with intent
either to permanently or temporarily deprive the owner
thereof” of title to or possession of her property. Hence, an
individual may be convicted under the statute whether he
takes a vehicle temporarily or permanently.
People v. Allen
,
To determine whether a past conviction qualifies as a generic offense, such as a generic offense described in an immigration statute, courts use the categorical approach: “They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime.” Descamps v. United States , 133 S. Ct. 2276, 2281 (2013). “The prior conviction qualifies as [the generic offense] only if the statute’s elements are the same as, or narrower than, those of the generic offense.” .
Here, we compare whether a conviction under California
Vehicle Code § 10851(a) categorically qualifies as the
generic offense of a crime involving moral turpitude. This
court acknowledged that the BIA has held that § 10851 “is a
categorical theft offense even though, in some circumstances,
it criminalizes taking a vehicle temporarily, as distinct from
permanently.”
Duenas-Alvarez v. Holder
,
Almanza-Arenas’s statute of conviction proscribes both
conduct that does not amount to a crime of moral turpitude
(temporary taking) and conduct that would constitute a crime
of moral turpitude (permanent taking). The elements of his
statute of conviction are neither “the same as, or narrower
than, those of the generic offense.”
Descamps
,
In
Descamps
, the Court analyzed California Penal Code
§ 459, which provides that a “person who enters” certain
locations “with intent to commit grand or petit larceny or any
felony is guilty of burglary.”
Id
. at 2282. At issue was
whether a conviction under California Penal Code § 459
qualified as a generic burglary (and so as a “violent felony”)
under the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Generic burglary required that an entry be “unlawful,” but
§ 459 did not.
Descamps
,
California Vehicle Code § 10851(a) is, in significant ways, analogous to California Penal Code § 459. To secure a conviction under California Vehicle Code § 10851(a), the state need not prove that a defendant permanently took a vehicle. Yet only a permanent taking is a crime of moral turpitude. See Castillo-Cruz , 581 F.3d at 1159. In that respect, just as in Descamps , “California, to get a conviction [under § 10851(a)] need not prove” an essential element of *9 the generic offense: a permanent taking. Descamps , 133 S. Ct. at 2285-86. The statute is thus overbroad in the same manner as California Penal Code § 459, because it “criminalizes a broader swath of conduct than the relevant generic offense” by criminalizing temporary as well as permanent takings. Id. at 2285.
Because “[Almanza-Arenas’s] crime of conviction . . . does not correspond to the relevant generic offense,” our analysis under the categorical approach ends here. Id . at 2286. We may only proceed to apply the modified categorical approach if we find that California Vehicle Code § 10851(a) is a divisible statute.
C. The Modified Categorical Approach
C.1 The Modified Categorical Approach is Not
Applicable Because California Vehicle Code
§ 10851(a) is Not Divisible
Courts may apply the modified categorical approach only
to divisible statutes.
Id
. at 2282. A statute is divisible where
it “sets out one or more elements of the offense in the
alternative,”
id
. at 2281, effectively creating “several
different . . . crimes.”
Id
. at 2285 (quoting
Nijhawan v.
Holder
, 557 U.S. 29, 41 (2009)). The difference between
indivisible and divisible statutes is that “indivisible statutes
may contain multiple, alternative
means
of committing the
crime, [but] only divisible statutes contain multiple,
alternative
elements
of functionally separate crimes.”
Rendon
v. Holder
,
California Vehicle Code § 10851(a) uses “either . . . or”
language to discuss the element at issue: it states that a person
who drives or takes a vehicle not his own “with intent either
to permanently or temporarily deprive the owner thereof” is
guilty of the offense. Section 10851(a), however, does not
list “alternative elements” that effectively create several
different crimes, as
Descamps
and
Nijhawan
require of a
divisible statute.
See Descamps
,
The jury instructions for § 10851 also demonstrate the
statute’s indivisibility. The jury need not agree on how long
the actor intended to deprive a vehicle owner of possession of
her vehicle; instead the jury need only agree that “the
defendant . . . intended to deprive the owner of possession or
ownership of the vehicle for any period of time.” Judicial
Council Of California Criminal Jury Instruction 1820.
We thus hold that California Vehicle Code § 10851(a) is
indivisible for the purposes of determining whether a
conviction under § 10851(a) is a crime of moral turpitude.
Descamps
prohibits us from applying the modified
categorical approach to an indivisible statute like § 10851(a).
See Descamps
,
C.2 The BIA Erred in its Application of the Modified Categorical Approach The BIA also erred in its application of the modified categorical approach. To demonstrate and correct this error, we continue in our analysis under the assumption that the statute is divisible and that it was permissible for the BIA to engage in a modified categorical approach to examine Almanza-Arenas’s record of conviction.
Where the petitioner was convicted under a divisible
statute, we apply the modified categorical approach to
determine “which alternative element in a divisible statute
formed the basis of the defendant’s conviction.”
Descamps
,
Under the modified categorical approach, “a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Id. at 1684 (internal quotations omitted). If the record of conviction is inconclusive, then the conviction did not “‘necessarily’ involve facts that correspond” to a disqualifying offense, and the noncitizen “was not convicted of a[] [disqualifying offense]” as a matter of law. Id . at 1687. Any ambiguity is “construed in the noncitizen’s favor.” . at 1693.
Here, the complaint, plea agreement, judgment, and abstract of judgment were all part of the record before the BIA. All of these documents are ambiguous as to whether Almanza-Arenas was convicted of either permanently or temporarily taking a vehicle. The complaint charges him with “either permanently or temporarily” depriving the lawful vehicle owner of their property under California Vehicle Code § 10851(a); the plea agreement indicates a nolo plea under People v. West to one count of violating § 10851 “per 17(b),” evidently a reference to the misdemeanor offenses section of the California Penal Code; and the judgment indicates only that Almanza-Arenas was convicted of a misdemeanor violation of § 10851(a) and sentenced to twenty-four days in custody, minus time served. The record is thus inconclusive as to whether Almanza-Arenas was convicted of temporarily or permanently taking a vehicle. Because he may have been convicted of a temporary taking, but only a permanent taking is a crime involving moral turpitude, we are unable to determine whether Almanza- Arenas was convicted of a crime involving moral turpitude.
A LMANZA -A RENAS V . H OLDER 15 D. An Inconclusive Record of Conviction Does Not
Render an Alien Ineligible for Cancellation of Removal
Almanza-Arenas’s record of conviction did not conclusively show whether or not he was convicted of a crime involving moral turpitude. The BIA not only engaged in the modified categorical approach impermissibly, but also determined that, where the record of conviction was inconclusive, the petitioner was ineligible for cancellation of removal. This was in error. In Moncrieffe , the Supreme Court held that “[b]ecause we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” 133 S.Ct. at 1684 (internal quotations omitted). Because the record is inconclusive as to whether Almanza-Arenas was convicted for intending to permanently or temporarily take a vehicle we must presume that he was convicted for joyriding, which is not a crime of moral turpitude.
In
Moncrieffe
, the Supreme Court stressed that “to qualify
as an aggravated felony, a conviction for the predicate offense
must necessarily establish
” all the elements of a generic
aggravated felony.
Moncrieffe
,
Our circuit precedent in
Young v. Holder
is clearly
irreconcilable with
Moncrieffe
. In
Young
, we held that “[a]
petitioner cannot carry the burden of demonstrating eligibility
for cancellation of removal by establishing an inconclusive
record of conviction.”
Other aspects of the Supreme Court’s reasoning underscore the fact that Young is irreconcilable with Moncrieffe . The Supreme Court stressed that, under the modified categorical approach, “[o]ur analysis is the same in both” the context of deportability and the context of relief from removal. Id. at 1685 n.4. Thus, Young cannot be correct that the significance of an inconclusive record of conviction depends on the allocation of the burden of proof, see Young , 697 F.3d at 989: the Government bears the burden of proving deportability, but noncitizens bear the burden of proving eligibility for relief from removal. See 8 U.S.C. § 1229a(c)(3); 8 U.S.C. § 1229a(c)(4). Indeed, the Supreme Court expressly refused to require noncitizens to prove that they had not been convicted of an aggravated felony. Moncrieffe , 133 S. Ct. at 1690 (rejecting the Government’s suggestion that “[n]oncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration”). In so doing, the Supreme Court stressed that courts applying the modified categorical approach must “err on the side of underinclusiveness because ambiguity in criminal statutes referenced by the [Immigration and Nationality Act] must be construed in the noncitizen’s favor.” . at 1693.
Although a three judge panel may generally not overrule
*14
a prior decision of this court, this is not so where the prior
decision has been “undercut by higher authority to such an
extent that it has been effectively overruled.”
Miller v.
Gammie
,
The generic offense at issue in
Moncrieffe
is an
aggravated felony, whereas in the matter before us, the
generic offense is a crime involving moral turpitude. But
“[w]hen a three-judge panel is deciding whether prior case
law has been overruled, the issues decided by the higher court
need not be identical in order to be controlling.”
Cardenas-
Delgado v. Holder
, 720 F.3d 1111, 1119 (9th Cir. 2013)
(internal quotations omitted). Here,
Moncrieffe
controls
because the procedures to determine whether a conviction is
for a crime involving moral turpitude or an aggravated felony
are identical.
See Olivas-Motta
,
Moncrieffe
explains that its holding “is not without
qualification.”
Thus, where an alien is convicted under a divisible criminal statute, and may have been convicted of a lesser crime that did not include an element of moral turpitude, “we err on the side of underinclusiveness” by not disqualifying the alien from cancellation of removal, “because ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen’s favor.” . at 1693.
CONCLUSION
The petition is hereby GRANTED , and this matter is REMANDED to the BIA for further proceedings. FISHER, Circuit Judge, concurring in part and concurring in the result:
Because California Vehicle Code § 10851(a) is not
divisible, it is unnecessary in this case to apply the modified
categorical approach and decide whether our en banc decision
in
Young v. Holder
,