Jose Lozano Arredondo v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GUADALUPE LOZANO- No. 11-72422

ARREDONDO,

Petitioner, Agency No.

A098-392-551

v.

JEFFERSON B. SESSIONS III, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 7, 2016

Seattle, Washington

Filed August 8, 2017

Before: William A. Fletcher, Raymond C. Fisher

and N. Randy Smith, Circuit Judges.

Opinion by Judge Fisher

2 LOZANO-ARREDONDO V. SESSIONS

SUMMARY*

Immigration

The panel granted Lozano-Arredondo’s petition for

review of the Board of Immigration Appeals’ decision

concluding he was ineligible for cancellation of removal

because his conviction for petit theft in Idaho was a crime

involving moral turpitude.

First, the panel held that Lozano-Arredondo’s record of

conviction is inadequate to determine if he was convicted of

a crime involving moral turpitude because the record does not

identify any particular statute of conviction, the Idaho petit

theft statute is not categorically a crime involving moral

turpitude, and the record contained insufficient information

to apply the modified categorical approach. The panel noted

that the effect of this inconclusive record is unclear due to the

open question of whether Young v. Holder, 697 F.3d 976, 989

(9th Cir. 2012) (en banc), remains good law after the

Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct.

1678 (2013). However, the panel declined to reach the

Young-Moncrieffe issue because another panel of this court

has priority to address it. Instead – because the panel was

remanding on another ground – the panel also remanded the

modified categorical approach question to the Board, stating

that once the Young-Moncrieffe issue is resolved by this

court, the Board can apply that law to Lozano-Arredondo’s

conviction.

*

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

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

LOZANO-ARREDONDO V. SESSIONS 3

Second, the panel remanded to the Board the issue of

whether Lozano-Arredondo had been convicted of an

“offense under” 8 U.S.C. § 1227(a)(2)(A)(i), which provides

that an alien “who is convicted of a crime involving moral

turpitude committed within five years . . . after the date of

admission, . . . for which a sentence of one year or longer

may be imposed, is deportable.” The panel declined to defer

to the Board’s published decision in In re Cortez Canales,

25 I. & N. Dec. 301 (BIA 2010), which held that

§ 1227(a)(2)(A)(i) applies regardless of when the offense was

committed, and is not limited to offenses committed within

five years of admission. The panel remanded for the Board

to reconsider its interpretation of the phrase “offense under”

in the cancellation of removal statute.

COUNSEL

Maria Elena Andrade (argued) and Nathaniel J. Damren,

Andrade Legal, Boise, Idaho, for Petitioner.

Gregory A. Pennington, Jr. (argued) and Kathryn M.

McKinney, Trial Attorneys; Anh-Thu P. Mai-Windle and

Kiley Kane, Senior Litigation Counsel; Joyce R. Branda,

Acting Assistant Attorney General; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C.; for Respondent.

4 LOZANO-ARREDONDO V. SESSIONS

OPINION

FISHER, Circuit Judge:

Jose Guadalupe Lozano-Arredondo was denied

cancellation of removal based on his conviction for petit theft

in the State of Idaho. The Board of Immigration Appeals

(BIA) concluded he was ineligible for cancellation because

this conviction qualified as an “offense under” 8 U.S.C.

§ 1227(a)(2). That provision says any alien who “is

convicted of [1] a crime involving moral turpitude

[2] committed within five years . . . after the date of

admission, and . . . [3] for which a sentence of one year or

longer may be imposed, is deportable.” § 1227(a)(2)(A)(i).

Lozano-Arredondo petitions for review, arguing (1) his petit

theft conviction does not qualify as a crime involving moral

turpitude and (2) the crime occurred more than five years

after his admission to the United States, so it does not bar him

from cancellation. We grant the petition and remand.

First, we hold the record of conviction is inadequate to

determine whether Lozano-Arredondo was convicted of a

crime involving moral turpitude. Although the record shows

Lozano-Arredondo was convicted of petit theft, it does not

identify any particular statute of conviction, and Idaho’s petit

theft statute as a whole is overbroad under the categorical

approach. See Almanza-Arenas v. Lynch, 815 F.3d 469, 476

(9th Cir. 2015) (en banc); Castillo-Cruz v. Holder, 581 F.3d

1154, 1159–60 (9th Cir. 2009); Mendoza v. Holder, 623 F.3d

1299, 1302–03 (9th Cir. 2010). Under the modified

categorical approach, the record contains insufficient

information to determine whether Lozano-Arredondo was

convicted under one of the Idaho petit theft provisions

LOZANO-ARREDONDO V. SESSIONS 5

meeting the generic federal offense. See United States v.

Grisel, 488 F.3d 844, 851–52 (9th Cir. 2007) (en banc).1

The effect of this inconclusive record, however, is

unclear. Under Young v. Holder, 697 F.3d 976, 989 (9th Cir.

2012) (en banc), Lozano-Arredondo bears the burden of

establishing he was not convicted of a crime involving moral

turpitude, and an inconclusive record means he has not

carried this burden. But it is an open question whether Young

remains good law after the Supreme Court’s decision in

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which suggests

Lozano-Arredondo would win under an inconclusive record.

Because another panel of this court has priority to address the

Young-Moncrieffe issue, we do not reach it. Instead –

because we remand on Lozano-Arredondo’s second argument

– we remand the modified categorical approach issue to the

BIA as well. Once the Young-Moncrieffe question is

resolved, the BIA can apply that law to Lozano-Arredondo’s

conviction.

The second issue is whether Lozano-Arredondo is

ineligible for cancellation of removal even though he

committed petit theft more than five years after his admission

to the United States. The BIA concluded he is ineligible in

this circumstance. Relying on its decision in In re Cortez

Canales, 25 I. & N. Dec. 301, 307 (BIA 2010), the BIA held

a conviction qualifies as an “offense under” § 1227(a)(2) if it

involves a crime of moral turpitude punishable by at least a

year in prison – regardless of when the crime was committed.

1

The parties agree the Idaho theft statute is divisible. We therefore

assume without deciding, solely for purposes of this appeal, that the

statute is divisible.

6 LOZANO-ARREDONDO V. SESSIONS

Although we ordinarily defer to an agency’s reasonable

interpretation of an ambiguous statute, see Chevron U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984),

the BIA’s interpretation of an “offense under” § 1227(a)(2)

is not entitled to deference.2 The BIA erroneously concluded

Congress’ intent had been clearly expressed at Chevron step

one, Cortez Canales, 25 I. & N. Dec. at 308, and thus did not

exercise its “expertise and discretion in interpreting the

statute” at Chevron step two, Gila River Indian Cmty. v.

United States, 729 F.3d 1139, 1149 (9th Cir. 2013). In this

circumstance, rather than interpret the statute ourselves in the

first instance, “we ‘remand to require the agency to consider

the question afresh in light of the ambiguity we see.’” Id. at

1151 (quoting Delgado v. Holder, 648 F.3d 1095, 1103 n.12

(9th Cir. 2011) (en banc)).

BACKGROUND

Lozano-Arredondo entered the United States in August

1990 without being admitted. He was convicted of petit theft

in 1997. In 2005, the Department of Homeland Security

initiated removal proceedings, and Lozano-Arredondo

applied for cancellation of removal under 8 U.S.C.

§ 1229b(b). In 2007, an Immigration Judge (IJ) determined

Lozano-Arredondo was ineligible for cancellation of removal

because he had admitted to committing statutory rape.

The BIA dismissed his appeal on different grounds,

concluding that his petit theft conviction made him ineligible

for cancellation under § 1229b(b)(1)(C). That statute says, in

2

Because the BIA relied on its published decision in Cortez Canales,

we review that decision under Chevron. See Lezama-Garcia v. Holder,

666 F.3d 518, 524–25 (9th Cir. 2011).

LOZANO-ARREDONDO V. SESSIONS 7

relevant part, “[t]he Attorney General may cancel removal of

. . . an alien who is inadmissible or deportable from the

United States if the alien . . . has not been convicted of an

offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)

of this title.” The BIA determined Lozano-Arredondo’s petit

theft conviction was an “offense under” § 1227(a)(2)(A)(i),

which says:

(2) Criminal offenses

(A) General crimes

(i) Crimes of moral turpitude

Any alien who–

(I) is convicted of a crime involving moral

turpitude committed within five years (or

10 years in the case of an alien provided

lawful permanent resident status under section

1255(j) of this title) after the date of

admission, and

(II) is convicted of a crime for which a

sentence of one year or longer may be

imposed,

is deportable.

Lozano-Arredondo petitioned for review, and we

remanded for the BIA to clarify the statutory basis upon

which it dismissed the appeal. See Arredondo v. Holder,

623 F.3d 1317, 1319–20 (9th Cir. 2010). We concluded “the

BIA [had] not address[ed] the applicability, if any, of the

8 LOZANO-ARREDONDO V. SESSIONS

exceptions outlined in the respective statutes regarding crimes

involving moral turpitude (i.e., the petty offense exception

[under § 1182(a)(2)] and time period limitations [under

§ 1227(a)(2)(A)(i)]).” Id. at 1320.

On remand, the BIA held in an unpublished decision that

Lozano-Arredondo’s petit theft conviction constituted an

“offense under” § 1227(a)(2) because § 1227(a)(2)’s within-

five-years element does not apply in the cancellation of

removal context. The BIA relied on its published decision in

Cortez Canales, 25 I. & N. Dec. 301, which held a woman’s

welfare fraud conviction made her ineligible for cancellation

of removal under § 1229b(b)(1)(C) because it was an offense

under § 1227(a)(2)(A)(i). Although Cortez Canales did not

commit the offense within five years after admission, the BIA

held, “in determining which offenses are ‘described under’

[§ 1227(a)(2)] for purposes of [§ 1229b(b)(1)(C)], only

language specifically pertaining to the criminal offense, such

as the offense itself and the sentence imposed or potentially

imposed, should be considered.” Cortez Canales, 25 I. & N.

Dec. at 307. The within-five-years element, it held,

“pertain[s] only to aspects of immigration law,” and “is not

considered.” Id.

STANDARD OF REVIEW

We review de novo questions of statutory interpretation.

See Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).

LOZANO-ARREDONDO V. SESSIONS 9

DISCUSSION

I. Whether Lozano-Arredondo’s conviction qualifies as

a crime involving moral turpitude.

We first address whether Lozano-Arredondo’s petit theft

conviction qualifies as a crime involving moral turpitude

under either the categorical or the modified categorical

approach. “Under the categorical approach, we ask whether

the full range of conduct encompassed by the criminal statute

constitutes a crime of moral turpitude.” Mendoza, 623 F.3d

at 1302 (citation omitted). “If the statute proscribes only

conduct that involves moral turpitude,” the inquiry ends. Id.

at 1303.

When a statute does not satisfy the categorical approach,

we may resort to the modified categorical approach, but only

if the statute is divisible. See Lopez-Valencia v. Lynch,

798 F.3d 863, 868 (9th Cir. 2015). Under the modified

categorical approach, we look to the Shepard documents to

determine whether the person was, in fact, convicted of a

crime involving moral turpitude as defined by federal law.

See Grisel, 488 F.3d at 850. These include the “charging

document, the terms of a plea agreement or transcript of

colloquy between judge and defendant,” “jury instructions,”

“bench-trial findings and rulings” or “some comparable

judicial record of this information.” Shepard v. United States,

544 U.S. 13, 25–26 (2005).

Here, the record of conviction is inadequate to conclude

Lozano-Arredondo was convicted of a crime involving moral

turpitude under either the categorical or the modified

categorical approach. The only document referencing

Lozano-Arredondo’s petit theft conviction was a “rap sheet,”

10 LOZANO-ARREDONDO V. SESSIONS

which makes no mention of Lozano-Arredondo’s statute of

conviction. Nonetheless, the BIA surmised Lozano-

Arredondo was convicted under Idaho Code § 18-2408(3),

which provides “[p]etit theft is a misdemeanor punishable by

a fine not exceeding one thousand dollars . . . or by

imprisonment in the county jail not exceeding one . . . year or

by both.” This punishment statute, standing alone, could not

provide the BIA with enough information about whether

Lozano-Arredondo’s statute of conviction was a crime

involving moral turpitude. A different provision – Idaho

Code § 18-2403 – is the only part of the Idaho Code that

defines the specific acts that constitute theft in Idaho, and this

provision includes acts that would not constitute a crime

involving moral turpitude under federal law because they

could involve only a temporary taking of property. See Idaho

Code § 18-2403(5); Almanza-Arenas, 815 F.3d at 476;

Castillo-Cruz, 581 F.3d at 1159–60. Accordingly, Idaho’s

petit theft statute does not qualify as a crime involving moral

turpitude under the categorical approach.3

3

The BIA’s recent decision in In re Diaz-Lizarraga, 26 I. & N. Dec.

847 (BIA 2016), does not alter our conclusion that § 18-2403 penalizes

conduct falling outside the generic definition of theft. Diaz-Lizarraga

held that generic theft does not require “a literally permanent intended

deprivation.” Id. at 853. Instead, it “requires an intent to deprive the

owner of his property either permanently or under circumstances where

the owner’s property rights are substantially eroded.” Id. at 854. This

definition tracks Idaho’s own definition of the intent required to “‘deprive’

another of property.” Idaho Code § 18-2402(3); see Diaz-Lizarraga, 26 I.

& N. Dec. at 852 & n.5. Nonetheless, Idaho’s theft statute also penalizes

the kinds of temporary takings the BIA continues to place outside of

generic theft – “statutes that . . . encompass ‘joyriding’ . . . or other short-

term takings of property.” Id. at 850.

LOZANO-ARREDONDO V. SESSIONS 11

We turn, then, to the modified categorical approach.4

Under this approach, we look to the record of conviction to

determine whether Lozano-Arredondo was convicted under

one of the Idaho theft provisions penalizing a permanent

taking of property. Here, that analysis is inconclusive

because nothing in the record identifies the specific part of

Idaho Code § 18-2403 under which Lozano-Arredondo was

convicted. The record contains no charging document,

judgment of conviction, jury instructions, guilty plea or plea

transcript. Cf., e.g., Grisel, 488 F.3d at 851.

Although a rap sheet may form part of the “record of

conviction,” see Kepilino v. Gonzales, 454 F.3d 1057, 1062

(9th Cir. 2006), it is not sufficiently reliable under these

circumstances to be considered under the modified

categorical analysis, see United States v. Leal-Vega, 680 F.3d

1160, 1168–69 (9th Cir. 2012). At best, the rap sheet here is

the equivalent of an “abstract of judgment,” which we have

held can “be used, if it is not the only document that is used

to determine if a prior offense meets the modified categorical

approach.” Id. at 1168 (emphasis added). The rap sheet

presented in this case does not “contain[] any detail . . . or any

usable information about the factual basis for [Lozano-

Arredondo’s] conviction,” or the provision under which he

was convicted. See Kepilino, 454 F.3d at 1062. To the

contrary, the rap sheet does not even cite any provision of

Idaho law. As a result, the record is inconclusive as to which

theft provision Lozano-Arredondo was convicted under, and

the BIA erred in finding that Lozano-Arredondo was

4

Lozano-Arredondo conceded in his opening brief that the Idaho theft

statute is divisible, and he did not contend otherwise before the BIA. To

be clear, we do not hold that the statute is divisible. We reserve that issue

for another case in which the parties raise it.

12 LOZANO-ARREDONDO V. SESSIONS

convicted of a particular theft offense that qualified as a

crime involving moral turpitude.

The ultimate effect of this inconclusive record, however,

is unclear. Under Young, 697 F.3d at 989, the petitioner bears

the burden of proving he was not convicted of a crime

involving moral turpitude. Young holds that where, as here,

the record of conviction is inconclusive, the petitioner has not

met that burden. See id. Thus, to the extent Young remains

good law, Lozano-Arredondo has not met his burden to

establish he was not convicted of a crime involving moral

turpitude.

The continuing viability of Young, however, is an open

question after the Supreme Court’s decision in Moncrieffe,

133 S. Ct. 1678, which suggests an inconclusive record works

to a petitioner’s advantage, regardless of which party bears

the burden of proof. See Almanza-Arenas, 815 F.3d at

488–89 (Watford, J., concurring). The question whether

Moncrieffe abrogated Young’s burden rule is pending before

another panel of this court that has priority. See

Marinelarena v. Sessions, No. 14-72003; Ninth Circuit

General Order 4.1(a). We therefore do not reach it here.

Instead – because we remand on another ground, as discussed

below – we remand the modified categorical approach

question to the BIA as well. Once the mandate has issued in

Marinelarena, the BIA can apply that law to Lozano-

Arredondo’s conviction.

In sum, with respect to Lozano-Arredondo’s argument

that his petit theft conviction does not qualify as a crime

involving moral turpitude, we hold Idaho’s petit theft statute

is categorically overbroad because it penalizes temporary

takings. We also hold that under the modified categorical

LOZANO-ARREDONDO V. SESSIONS 13

approach, the record of conviction is inconclusive. For now,

the effect of that inconclusive record is an unresolved

question, and our analysis can go no further. Once that

question is decided, the BIA can apply the governing law to

determine whether Lozano-Arredondo’s conviction qualifies

as a crime involving moral turpitude.

II. Whether a conviction for a crime involving moral

turpitude precludes cancellation of removal even if the

offense was committed more than five years after

admission.

Assuming Lozano-Arredondo was convicted of a crime

involving moral turpitude, we next must decide whether this

conviction constitutes an “offense under” § 1227(a)(2)(A)(i)

even though he was not convicted within five years of

admission. See § 1229b(b)(1)(C). Section 1227(a)(2)(A)(i)

says any alien who “is convicted of [1] a crime involving

moral turpitude [2] committed within five years . . . after the

date of admission, . . . [3] for which a sentence of one year or

longer may be imposed, is deportable.” § 1227(a)(2)(A)(i).

The BIA concluded Lozano-Arredondo’s petit theft

conviction was an “offense under” § 1227(a)(2)(A)(i),

because it was a crime involving moral turpitude for which a

sentence of one year could be imposed. It is undisputed,

however, that Lozano-Arredondo’s conviction occurred more

than five years after his date of admission. The BIA did not

consider this relevant, relying on its decision in Cortez

Canales.

The central question is thus whether § 1229b(b)(1)(C)

incorporates the within-five-years element of

§ 1227(a)(2)(A)(i). If it does, then Lozano-Arredondo is

eligible for cancellation of removal, because his petit theft

14 LOZANO-ARREDONDO V. SESSIONS

conviction did not occur within five years of his admission to

the United States. If it does not, as the BIA held in Cortez

Canales, then his petit theft conviction may make him

ineligible for cancellation.

Under Chevron, the BIA is entitled to deference in

interpreting ambiguous provisions of the INA.5 “Judicial

deference in the immigration context is of special importance,

for executive officials ‘exercise especially sensitive political

functions that implicate questions of foreign relations.’”

Negusie v. Holder, 555 U.S. 511, 517 (2009) (quoting INS v.

Abudu, 485 U.S. 94, 110 (1988)). This deference does not

apply, however, “where an agency mistakenly determines that

its interpretation is mandated by plain meaning, or some other

binding rule.” Gila River Indian Cmty., 729 F.3d at 1149. In

such a circumstance, the agency has “not yet exercised its

Chevron discretion to interpret the statute in question.”

Negusie, 555 U.S. at 523. Accordingly, even if its

interpretation “might ultimately be reasonable,” it is not

entitled to deference. Gila River Indian Cmty., 729 F.3d at

1149. When an agency erroneously concludes Congress’

intent is clear under step one, and has rested on that ground,

we remand for the agency to exercise its expertise and

discretion to interpret the statute under step two. See

Delgado, 648 F.3d at 1103–04 & n.12.

5

Under the “two-step framework . . . set forth in [Chevron], . . . we

[first] determine whether the intent of Congress is clear. If it is, both the

court and the agency must give effect to the unambiguously expressed

intent of Congress.” Marmolejo-Campos v. Holder, 558 F.3d 903, 908

(9th Cir. 2009) (en banc). (citations and internal quotation marks

omitted). “If, however, the text is ambiguous, the court proceeds to step

two and considers whether the agency’s interpretation was . . .

‘reasonable.’” Adams v. U.S. Forest Serv., 671 F.3d 1138, 1143 (9th Cir.

2012) (quoting Chevron, 467 U.S. at 845).

LOZANO-ARREDONDO V. SESSIONS 15

Here, the BIA’s decision is unpublished and thus not itself

entitled to Chevron deference, but its interpretation of

“offense under” § 1227(a)(2) in the published Cortez Canales

decision is reviewed under Chevron. See Lezama-Garcia,

666 F.3d at 524–25. In Cortez Canales, the BIA did not

exercise its discretion to interpret § 1229b(b)(1)(C). Instead,

the BIA concluded Congress’ intent was “clear” from the

“plain meaning” of the statute. Cortez Canales, 25 I. & N.

Dec. at 308. It also said its decision “clearly follows” from

Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004).

Id. We disagree.

A. Statutory Language

The language of § 1229b(b)(1)(C) is susceptible to several

interpretations. Section 1229b(b)(1)(C) incorporates an

“offense under” § 1227(a)(2). Section 1227(a)(2), though, is

not a criminal statute; an alien cannot be convicted under it.

See Gonzalez-Gonzalez, 390 F.3d at 652. Instead,

§ 1227(a)(2) lists conduct that makes an alien deportable, i.e.,

“deportable offenses.” The deportable offenses in

§ 1227(a)(2) are criminal offenses committed under specified

circumstances. The deportable offense at issue here is a kind

of criminal offense – a crime involving moral turpitude –

committed within five years after admission, for which a

sentence of one year or longer may be imposed. See

§ 1227(a)(2)(A)(i).

Section 1229b(b)(1)(C) simply incorporates an “offense

under” § 1227(a)(2). It does not say whether it incorporates

the entire deportable offense or only part of it. From the

language of the statute, the “offense under”

§ 1227(a)(2)(A)(i) could include: (1) only the criminal

offense itself – a crime involving moral turpitude; (2) the

16 LOZANO-ARREDONDO V. SESSIONS

criminal offense plus one additional element of the deportable

offense (i.e., the criminal offense plus either the within-five-

years limitation or the sentence-length limitation); or (3) all

three elements of the deportable offense.

The statutory language, therefore, is ambiguous on its

face.

B. The Scope of Gonzalez-Gonzalez

Gonzalez-Gonzalez did not resolve this ambiguity. There,

the petitioner was convicted of a crime of domestic violence

described under § 1227(a)(2)(E)(i). Based on this conviction,

the BIA concluded Gonzalez-Gonzalez was ineligible for

cancellation of removal. Section 1227(a)(2), however,

describes “deportable offenses,” whereas Gonzalez-Gonzalez

– who had entered the country illegally – was inadmissible,

rather than deportable. Gonzalez-Gonzalez thus argued a

conviction that fell under § 1227(a)(2) could not render him

ineligible for cancellation, because as an inadmissible alien,

he could not be convicted of an “offense under” a provision

describing only deportable offenses.

Gonzalez-Gonzalez rejected this argument. We held that

although certain offenses described in the statutes cross-

referenced by § 1229b(b)(1)(C) render admitted aliens

deportable, while others render non-admitted aliens

inadmissible, all offenses described in the statutes apply to all

aliens – regardless of admission status – for purposes of

§ 1229b(b)(1)(C)’s bar on cancellation of removal. We

concluded “[t]he most logical reading of ‘convicted of an

offense under’ is . . . ‘convicted of an offense described

under’ each of the three sections.” 390 F.3d at 652. We held

Gonzalez-Gonzalez’s domestic violence conviction was

LOZANO-ARREDONDO V. SESSIONS 17

“described under” § 1227(a)(2), even though, as an

inadmissible alien, he was not deportable. Id. at 652–53.

In Cortez Canales, the BIA incorrectly relied on

Gonzalez-Gonzalez in concluding an “offense under”

§ 1227(a)(2)(A)(i) does not include that provision’s within-

five-years element. The BIA held its “decision to exclude the

immigration-related provisions [i.e., the within-five-years

element,] . . . clearly follows from [Gonzalez-Gonzalez’s]

conclusion that the plain language of [§ 1229b](b)(1)(C) . . .

should be read to cross-reference a list of offenses in three

statutes, rather than the statutes as a whole.” Cortez Canales,

25 I. & N. Dec. at 308.

In holding an inadmissible alien could commit the offense

under § 1227(a)(2)(E)(i), however, Gonzalez-Gonzalez did

not foreclose treating the within-five-years element of

§ 1227(a)(2)(A)(i) as part of the offense for purposes of

determining eligibility for cancellation of removal. Indeed,

Gonzalez-Gonzalez did not in any way address the provision

parallel to the one at issue in this case – whether the domestic

violence offense described under § 1227(a)(2)(E)(i) includes

that provision’s “any time after admission” element for

purposes of cancellation of removal. Accordingly, Gonzalez-

Gonzalez does not bear on whether § 1229b(b)(1)(C)

incorporates the within-five-years element of

§ 1227(a)(2)(A)(i).

C. Related Provisions and Legislative History

In addition to incorrectly relying on the statute’s plain

meaning and Gonzalez-Gonzalez, the BIA wrongly concluded

Congress’ intent could be clearly discerned by comparing

§ 1229b(b)(1)(C) with a related provision, § 1229b(d)(1).

18 LOZANO-ARREDONDO V. SESSIONS

Section 1229b(d)(1) says, for purposes of cancellation of

removal, “any period of continuous residence or continuous

physical presence in the United States shall be deemed to end

. . . when the alien has committed an offense . . . that renders

the alien . . . removable from the United States under section

1227(a)(2).” § 1229b(d)(1) (emphasis added). Section

1229b(b)(1)(C), by contrast, makes an alien ineligible for

cancellation if he has been convicted of an offense under

§ 1227(a)(2), without reference to whether that offense

renders the alien removable under § 1227(a)(2). The BIA

held the absence of language in § 1229b(b)(1)(C) requiring

the alien to be removable under § 1227(a)(2) shows Congress

did not intend to require the “immigration-related elements”

of § 1227(a)(2) to be satisfied for an alien to be ineligible for

cancellation of removal. Cortez Canales, 25 I. & N. Dec. at

308.

The legislative history of § 1229b(b)(1)(C) undermines

the BIA’s reasoning. That history indicates Congress

understood § 1229b(b)(1)(C) to incorporate all elements of

the deportable offenses under § 1227(a)(2). The House

Conference Report on the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 described

§ 1229b(b)(1) by saying:

Section [1229b](b)(1) provides that the

Attorney General may cancel removal in the

case of an alien who . . . has at no time been

convicted of an offense that would render the

alien inadmissible under [§ 1182(a)(2)(A)] or

deportable under [§ 1227](a)(2).

LOZANO-ARREDONDO V. SESSIONS 19

H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.) (emphasis

added).6

An alien is deportable under § 1227(a)(2)(A)(i) only if he

committed a crime involving moral turpitude within five

years after admission. Thus, the Conference Report

contradicts the BIA’s interpretation of the statute and

undermines the distinction the BIA drew between

§ 1229b(b)(1)(C) and (d)(1). See Garcia v. United States,

469 U.S. 70, 76 (1984) (holding Committee Reports are an

“authoritative source for finding the Legislature’s intent”);

see also Samantar v. Yousuf, 560 U.S. 305, 316 n.9, 323

(2010) (considering the House Committee Report in

interpreting the Foreign Sovereign Immunities Act); BedRoc

Ltd., LLC v. United States, 541 U.S. 176, 187 n.8 (2004)

(resort to legislative history is permissible when the statutory

text is ambiguous).7

6

Gonzalez-Gonzalez appears in dictum to have misinterpreted the

House Conference Report, saying the excerpt we quote here was an earlier

version of the bill, rather than the committee’s description of the meaning

of the final version of the bill. See Gonzalez-Gonzalez, 390 F.3d at

652–53. The quoted text appears in the House Conference Committee’s

“Joint Explanatory Statement,” describing the meaning of the version of

the bill set forth earlier in the report. See H.R. Rep. No. 104-828, at 199.

The text of that bill is identical to the statute that was enacted. Compare

id. at 48, with § 1229b(b)(1)(C).

7

To the extent the Fifth Circuit in Nino v. Holder, 690 F.3d 691, 697

(5th Cir. 2012), similarly relied on the difference between the two

provisions to reach the same conclusion as the BIA, the House Conference

Report, which the Fifth Circuit did not address, undermines its reasoning

as well.

20 LOZANO-ARREDONDO V. SESSIONS

D. Within Five Years of “Admission”

Although none of the BIA’s stated rationales justifies its

interpretation at Chevron step one, an alternate textual ground

might support the BIA’s conclusion that § 1229b(b)(1)(C)

does not incorporate the within-five-years element of

§ 1227(a)(2)(A)(i) – albeit the government has not so argued

here. Section 1227(a)(2)(A)(i) says the crime must have

occurred “within five years . . . after the date of admission.”

(emphasis added). The term “admission” has a defined

meaning in the immigration context, referring to “the lawful

entry of [an] alien into the United States after inspection and

authorization by an immigration officer.” Garcia v. Holder,

659 F.3d 1261, 1267 (9th Cir. 2011) (alteration in original)

(quoting 8 U.S.C. § 1101(a)(13)(A)). Some aliens seeking

cancellation of removal – like Lozano-Arredondo – are never

“admitted” under that definition. Thus, if § 1229b(b)(1)(C)

incorporates the within-five-years element, aliens like

Lozano-Arredondo arguably could never be deemed

ineligible for cancellation under § 1227(a)(2)(A)(i).

Although this result would be contrary to our holding in

Gonzalez-Gonzalez that offenses under § 1227(a)(2) do apply

to non-admitted aliens in the cancellation context, one way to

avoid a conflict would be to exclude – as the BIA did – the

within-five-years element from the “offense under”

§ 1227(a)(2)(A)(i).

That is not the only option, however. The BIA’s

approach altogether disregards the House Conference

Committee Report, which evidences Congress’ intent to

incorporate the within-five-years element. Additionally, as

we held in Gonzalez-Gonzalez, 390 F.3d at 652–53, Congress

expected § 1227(a)(2) would apply to non-admitted aliens in

the cancellation context, even though its text says it applies

LOZANO-ARREDONDO V. SESSIONS 21

only to aliens “in and admitted to the United States.”

§ 1227(a). Given the legislative history and our decision in

Gonzalez-Gonzalez to interpret § 1227(a)(2) broadly enough

to apply to admitted and non-admitted aliens alike, there is a

more consistent way to reconcile the statutory language: to

likewise afford “admission” a broader meaning in this

context, one that encompasses both admitted and non-

admitted aliens. Lozano-Arredondo, for example, suggests

the word should be read to mean physical “entry” when

applied to an alien who has not been “admitted” in the

§ 1101(a)(13)(A) sense of the word.

Lozano-Arredondo’s reading has several advantages over

strictly employing a § 1101(a)(13)(A) definition of admission

in this context. Applying a reasonable, context-specific

meaning to “admission” would give effect to each word in the

statute, rather than reading out its “within five years”

language. It would also comport with both the legislative

history and Gonzalez-Gonzalez. Otherwise, using the

§ 1101(a)(13)(A) definition requires ignoring either the

legislative history or our holding in Gonzalez-Gonzalez that

§ 1227(a)(2) applies both to admitted and non-admitted

aliens. Moreover, we have deviated from the ordinary

immigration definition of “admission” in the past to make

sense of the statutory scheme under § 1227(a)(2) – albeit in

a different context. See Ocampo-Duran v. Ashcroft, 254 F.3d

1133, 1134–35 (9th Cir. 2001) (expanding the definition of

admitted under § 1227(a)(2) to include an alien who entered

the country illegally and thus was never admitted under

§ 1101(a)(13)(A), but later adjusted his status to lawful

permanent resident). The BIA also has been willing to go

beyond the § 1101(a)(13)(A) definition of admission in

interpreting § 1227(a)(2)’s use of that word. See Fuentes v.

Lynch, 837 F.3d 966, 968 (9th Cir. 2016); In re Rosas-

22 LOZANO-ARREDONDO V. SESSIONS

Ramirez, 22 I. & N. Dec. 616, 617–18 (BIA 1999) (deeming

an individual admitted notwithstanding her lack of admission

under the 8 U.S.C. § 1101(a)(13)(A) definition). Reading

“admission” to mean “entry” in this context is thus a

plausible resolution of the statutory text.

Although we conclude this resolution makes sense, we are

not yet prepared to hold it is the only reasonable

interpretation. We acknowledge this approach is imperfect

because it goes beyond the ordinary immigration definition of

admission. We therefore decide only that the inclusion of the

word “admission” as part of the within-five-years element

does not compel the conclusion that Congress intended to

exclude this element from the “offense under”

§ 1227(a)(2)(A)(I).

In sum, the statute is ambiguous. The BIA erred at

Chevron step one by concluding Congress clearly intended

not to incorporate the within-five-years element of

§ 1227(a)(2)(A)(i).

E. The BIA Has Not Reached Chevron Step Two

Because the BIA “misapprehended the clarity of the

statute,” misapplied Gonzalez-Gonzalez, and failed to

consider the on-point legislative history, it also did not

exercise its “expertise and discretion in interpreting the

statute” at Chevron step two. Gila River Indian Cmty.,

729 F.3d at 1149. We recognize the BIA said “even if the

language of [§ 1229b(b)(1)(C)] were found to be ambiguous,

we would interpret it in the same manner.” Cortez Canales,

25 I. & N. Dec. at 308. But this “one-sentence caveat” is “not

entitled to Chevron deference, because the [agency] did not

provide any explanation for this decision.” Gila River Indian

LOZANO-ARREDONDO V. SESSIONS 23

Cmty., 729 F.3d at 1150. Instead, “the passing [comment]

reflects ‘that the [agency] has not yet exercised its Chevron

discretion to interpret the statute in question.’” Id. (quoting

Negusie, 555 U.S. at 523). “[D]eferring to the [agency’s]

unexplained caveat would permit the agency to sidestep its

duty to bring its expertise to bear on the ‘difficult policy

choices’ it is tasked with making.” Id.

The BIA’s construction of § 1229b(b)(1)(C) is thus not

entitled to Chevron deference. The BIA erred by treating

§ 1229b(b)(1)(C) as unambiguous at step one, and it has not

yet exercised its discretion at step two. We therefore set

aside the BIA’s interpretation of § 1229b(b)(1)(C) in Cortez

Canales.

III. Conclusion

We grant Lozano-Arredondo’s petition and remand to the

BIA. We hold, first, that petit theft under Idaho law does not

qualify categorically as a crime involving moral turpitude.

We also hold that under the modified categorical approach,

the record of conviction is inconclusive. Because the effect

of that inconclusive record presents an open legal question

now pending before another panel of this court, our analysis

ends there. On remand, once this burden of proof question is

resolved, the BIA should determine whether Lozano-

Arredondo’s conviction qualifies as a crime involving moral

turpitude under the modified categorical approach, unless the

case is resolved on other grounds.

Second, we hold the BIA erred by deciding at Chevron

step one that an “offense under” § 1227(a)(2)(A)(i) does not

include the within-five-years element. Because the BIA

“erroneously contends that Congress’ intent has been clearly

24 LOZANO-ARREDONDO V. SESSIONS

expressed and has rested on that ground, we remand to

require the agency to consider the question afresh.” Delgado,

648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523)

(internal quotation marks omitted); see INS v. Ventura,

537 U.S. 12, 16–17 (2002). In light of this holding and the

explanations we have given, the BIA must reconsider its

interpretation of the phrase “offense under” in

§ 1229b(b)(1)(C).

PETITION GRANTED AND CASE REMANDED.

Costs are awarded to petitioner.