Gabriel Almanza-Arenas v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL ALMANZA-ARENAS, No. 09-71415

Petitioner,

Agency No.

v. A078-755-092

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

GABRIEL ALMANZA-ARENAS, No. 10-73715

Petitioner,

Agency No.

v. A078-755-092

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 7, 2013—Pasadena, California

Filed November 10, 2014

2 ALMANZA-ARENAS V. HOLDER

Before: Harry Pregerson and Raymond C. Fisher, Circuit

Judges, and James S. Gwin, District Judge.*

Opinion by Judge Pregerson;

Partial Concurrence by Judge Fisher

SUMMARY**

Immigration

The panel granted Gabriel Almanza-Arenas’s petition for

review of the Board of Immigration Appeals’ published

decision, Matter of Almanza-Arenas, 24 I. & N. Dec. 771

(BIA 2009), which held that a California state law conviction

for vehicle theft constitutes a crime involving moral

turpitude.

The panel held that Almanza-Arenas’s conviction

pursuant to California Vehicle Code § 10851(a) was not a

categorical crime of moral turpitude, because it punishes both

automobile theft, a permanent taking which is a CIMT, and

joyriding, a temporary taking which is not. The panel also

held that because the statute provides alternative means by

which the offense may be committed, but not alternative

elements, it is an indivisible statute, and the BIA thus erred in

applying the modified categorical approach.

*

The Honorable James S. Gwin, District Judge for the U.S. District

Court for the Northern District of Ohio, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALMANZA-ARENAS V. HOLDER 3

The panel, however, proceeded to apply the modified

categorical approach, in order to demonstrate and correct the

BIA’s error. The panel held that because the record was

inconclusive as to whether Almanza-Arenas was convicted of

temporarily or permanently taking a vehicle, the BIA erred in

finding him ineligible for cancellation of removal. The panel

further held that the holding in Young v. Holder, 697 F.3d 976

(9th Cir. 2012) (en banc) (a petitioner cannot fulfill his

burden to demonstrate eligibility for cancellation by

establishing an inconclusive record), has been abrogated in

part by the holding in Moncrieffe v. Holder, 133 S. Ct. 1678

(2013) (an alien convicted under a state statute whose

elements are not “necessarily” the same as the generic federal

disqualifying offense remains eligible for cancellation). The

panel remanded to the BIA for further proceedings.

Judge Fisher concurred in part with the majority opinion,

and concurred in the result. However, Judge Fisher would

find that because CVC § 10851(a) is indivisible, the panel did

not need to proceed to apply the modified categorical

approach and decide that Young was abrogated in part by

Moncrieffe.

COUNSEL

Michael J. Codner (argued) and Murray D. Hilts, Law Offices

of Murray D. Hilts, San Diego, California, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel; Tony

West, Assistant Attorney General; Leslie McKay, Assistant

Director; Stefanie Notarino Hennes, Trial Attorney, United

States Department of Justice, Civil Division, Office of

Immigration Litigation, Washington, D.C., for Respondent.

4 ALMANZA-ARENAS V. HOLDER

Jayashri Srikantiah, and Alison Kamhi, Immigrant’s Rights

Clinic, Mills Legal Clinic, Stanford Law School, Stanford,

California; Manuel Vargas and Isaac Wheeler, Immigrant

Defense Project, New York, New York, for Amicus Curiae

Immigrant Defense Project, National Immigration Project of

the National Lawyers Guild, Immigrant Legal Resource

Center, and Federal Defenders of San Diego.

OPINION

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

ALMANZA-ARENAS V. HOLDER 5

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 Cal. 4th 924, 932

(1992).

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 ALMANZA-ARENAS V. HOLDER

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).

ALMANZA-ARENAS V. HOLDER 7

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

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.”

8 ALMANZA-ARENAS V. HOLDER

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, 746 F.3d 907, 908 (9th Cir. 2013).

Because Almanza-Arenas filed his application for relief on

January 18, 2006, the Real ID Act and our cases that address

that Act apply. See Real ID Act of 2005, Pub. L. No. 109-13,

§ 101(h)(2), 119 Stat. 231, 302 (codified in scattered sections

of 8 U.S.C.) (Provisions of the REAL ID Act apply to

“applications for . . . relief from removal made on or after”

May 11, 2005.). The REAL ID Act places the burden on the

applicant to show eligibility for cancellation of removal.

4

The BIA also concluded that Almanza-Arenas was ineligible for the

petty offense exception that may render an alien eligible for cancellation

of removal even if he has a conviction for a crime involving moral

turpitude. Because we conclude that the BIA erred when it found that

Almanza-Arenas failed to meet his burden of proof to establish that he

was not convicted of a crime involving moral turpitude, we do not reach

this issue.

ALMANZA-ARENAS V. HOLDER 9

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,

984 P.2d 486, 490 (Cal. 1999)

B. The Categorical Approach

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.” Id.

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, 733 F.3d 812, 815

(9th Cir. 2013) (citing In re V-Z-S, 22 I. & N. Dec. 1338

(B.I.A. 2000) (en banc)). But “a theft offense is not

categorically a crime of moral turpitude if the statute of

conviction is broad enough to criminalize a taking with intent

10 ALMANZA-ARENAS V. HOLDER

to deprive the owner of his property only temporarily.”

Castillo-Cruz, 581 F.3d at 1159.

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, 133 S. Ct. at

2281. Thus, his conviction under California Vehicle Code

§ 10851(a) is not categorically a crime of moral turpitude.

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, 133 S. Ct. at 2285. The Court

found that a conviction under § 459 did not qualify as a

generic burglary “because California, to get a conviction,

need not prove” an essential element of the generic offense:

unlawful entry. Id. at 2285-86.

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

ALMANZA-ARENAS V. HOLDER 11

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, 764 F.3d 1077, 1084–85 (9th Cir. 2014) (emphasis

in original). A “jury faced with a divisible statute must

unanimously agree on the particular offense of which the

petitioner has been convicted (and thus, the alternative

12 ALMANZA-ARENAS V. HOLDER

element)”, however, when presented with an indivisible

statute the jury need not agree on which of the alternative

means the petitioner used to commit the offense. Id. at 1085.

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, 133 S. Ct. at 2285. Instead,

the statute requires a defendant to have the minimum intent

to deprive an owner of her vehicle for some period of time,

but not necessarily permanently. The language in § 10851(a)

does not create “different crimes,” but rather establishes a

threshold for the intent element—that is, a taking of a vehicle

that is at least temporary, but could also be permanent.

Section 10851(a) provides alternative means by which the

offense may be committed, not alternative elements. In other

words, § 10851(a) is an indivisible statute because it

“describes a single crime that can be committed in a variety

of ways depending on the intent of the actor.” People v.

Llamas, 51 Cal. App. 4th 1729, 1740 (1997).

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.

ALMANZA-ARENAS V. HOLDER 13

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, 133 S. Ct. at 2282. The BIA thus erred by

applying the modified categorical approach to examine

Almanza-Arenas’s record of conviction.

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,

133 S. Ct. at 2293. This inquiry is legal, not factual, because

“the [Immigration and Nationality Act] asks what offense the

noncitizen was ‘convicted’ of, . . . not what acts he

committed.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1685

(2013) (internal citations omitted).

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

14 ALMANZA-ARENAS V. HOLDER

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.” Id. 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.

ALMANZA-ARENAS V. HOLDER 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, 133 S. Ct. at 1687 (emphasis

added). Applying the modified categorical approach, the

Supreme Court was able to determine that Moncrieffe had

been convicted of possession of marijuana with intent to

distribute. See id. at 1685. Beyond that, Moncrieffe’s record

of conviction was ambiguous: the Supreme Court could not

determine whether Moncrieffe’s conviction otherwise

satisfied the elements of a generic aggravated felony. See id.

16 ALMANZA-ARENAS V. HOLDER

at 1686–87. This ambiguity, however, did not mean that

Moncrieffe had failed to meet his supposed burden “to show

that prior convictions do not constitute aggravated felonies.”

Contra Young, 697 F.3d at 989. On the contrary,

“[a]mbiguity on this point means that the conviction did not

‘necessarily’ involve facts that correspond to” a generic

aggravated felony. Moncrieffe, 133 S. Ct. at 1687. Because

Moncrieffe’s record of conviction did not establish that

Moncrieffe had necessarily been convicted of all the elements

of an aggravated felony, “Moncrieffe was not convicted of an

aggravated felony.” Id.

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.” 697 F.3d 976, 990 (9th Cir. 2012) (en

banc). Under Young, a petitioner like Almanza-Arenas would

not be eligible for cancellation of removal because there is

ambiguity as to whether he was convicted of a crime

involving moral turpitude. According to Moncrieffe,

however, this same ambiguity makes Almanza-Arenas

eligible for cancellation of removal.

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

ALMANZA-ARENAS V. HOLDER 17

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.”

Id. at 1693.

Although a three judge panel may generally not overrule

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, 335 F.3d 889, 899 (9th Cir. 2003). In Moncrieffe,

the Supreme Court held that an alien convicted under a state

statute whose elements are not “necessarily” the same as the

generic federal disqualifying offense remains eligible for

cancellation of removal. 133 S. Ct. at 1684. Moncrieffe

overrules Young’s holding that to be eligible for cancellation

of removal, an alien must conclusively show that his

conviction did not include the elements of the federal

disqualifying offense. Young, 697 F.3d at 990.

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

18 ALMANZA-ARENAS V. HOLDER

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, 746 F.3d at 911 (“There is

nothing in the substantive definition of a [crime involving

moral turpitude], in either the BIA’s definitions or the

Attorney General’s distillation, that permits an IJ to use a

different procedure than it uses for other crimes in

determining whether an alien has been convicted of such a

crime.”).

Moncrieffe explains that its holding “is not without

qualification.” 133 S. Ct. at 1684. For divisible statutes, “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. (citing Nijhawan,

557 U.S. at 35) (quoting Shepard v. U.S., 544 U.S. 13, 26

(2005) (internal quotation marks omitted). Moreover,

Moncrieffe does not hold that an alien with an inconclusive

record of conviction will necessarily avoid deportation.

Rather, the alien avoids mandatory removal and “may seek

relief from removal such as asylum or cancellation of

removal.” Id. at 1692. Moncrieffe’s holding allows us to

avoid the unfortunate situation where “two noncitizens, each

‘convicted of’ the same offense, might obtain different”

readings of their ambiguous prior conviction “depending on

what evidence remains available or how it is perceived by an

individual [IJ].” Id. at 1690.

ALMANZA-ARENAS V. HOLDER 19

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.” Id. 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, 697 F.3d 976 (9th Cir. 2012), has been

abrogated in part by Moncrieffe v. Holder, 133 S. Ct. 1678

(2013). Therefore, I do not join in parts C.2 and D of the

majority’s opinion. I otherwise join in the majority opinion

and concur in the result.