Aracely Marinelarena v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARACELY MARINELARENA, No. 14-72003

Petitioner,

Agency No.

v. A095-731-273

WILLIAM P. BARR, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc September 27, 2018

Pasadena, California

Filed July 18, 2019

Before: Sidney R. Thomas, Chief Judge, and A. Wallace

Tashima, Susan P. Graber, William A. Fletcher, Marsha S.

Berzon, Johnnie B. Rawlinson, Jay S. Bybee, Milan D.

Smith, Jr., Sandra S. Ikuta, Paul J. Watford and Michelle T.

Friedland, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Ikuta

2 MARINELARENA V. SESSIONS

SUMMARY*

Immigration

Granting Aracely Marinelarena’s petition for review,

reversing a decision of the Board of Immigration Appeals,

and remanding, the en banc court overruled Young v. Holder,

697 F.3d 976 (9th Cir. 2012) (en banc), and held that, in the

context of eligibility for cancellation of removal, a

petitioner’s state-law conviction does not bar relief where the

record is ambiguous as to whether the conviction constitutes

a disqualifying predicate offense.

Marinelarena was charged with conspiracy to commit a

felony in violation of California Penal Code § 182(a)(1),

namely conspiring to sell and transport a controlled substance

in violation of California Health and Safety Code § 11352.

The complaint listed a number of overt acts in support, only

one of which referenced a specific controlled substance,

heroin. Upon a guilty plea, Marinelarena was convicted of

violating § 182(a)(1).

In removal proceedings, Marinelarena argued that her

conviction did not constitute a controlled substance offense

that barred cancellation of removal because her record of

conviction did not identify that the conviction rested on a

specific controlled substance. However, the BIA concluded

that Marinelarena had the burden of establishing that her

conviction was not a disqualifying offense, and that she had

not met that burden.

*

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

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

MARINELARENA V. SESSIONS 3

In determining whether Marinelarena’s conviction

constituted a predicate offense for immigration purposes, the

en banc court applied the three-step process derived from

Taylor v. United States, 495 U.S. 575 (1990).

First, the en banc court held that the conspiracy statute

under which Marinelarena was convicted was not a

categorical match to the relevant federal controlled substance

offense because a defendant could be convicted under

California Penal Code § 182(a)(1) for any criminal

conspiracy, whether or not it relates to a controlled substance

offense.

Second, the en banc court assumed that § 182(a)(1) is

divisible both as to the predicate crime underlying the

conspiracy (here, § 11352) and as to the controlled substance

element of § 11352, explaining that the issue of divisibility

made no difference to the outcome of the case.

Third, the en banc court applied the modified categorical

approach, in which the court examines judicially noticeable

documents of conviction – known as Shepard documents

after Shepard v. United States, 544 U.S. 13 (2005) – to

determine whether a petitioner was “necessarily” convicted

of a state crime with the same basic elements as the relevant

generic federal crime. In doing so, the en banc court

concluded that Marinelarena’s record of conviction was

ambiguous because her guilty plea could have rested on an

overt act that did not relate to heroin and, therefore, the en

banc court could not assume her conviction was predicated on

an act involving a federally controlled substance.

In Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en

banc), this court previously held that when a record of

4 MARINELARENA V. SESSIONS

conviction is ambiguous after analyzing the Shepard

documents, a petitioner is ineligible for cancellation because

she has not met her burden of showing that she was not

convicted of a disqualifying offense. However, the en banc

court overruled Young, holding that it was incompatible with

the Supreme Court’s subsequent decision in Moncrieffe v.

Holder, 569 U.S. 184 (2013). In so concluding, the en banc

court explained that Moncrieffe held that, if a record of

conviction does not conclusively establish that a petitioner

was convicted of the elements of a generic offense, then she

was not convicted of the offense for immigration purposes.

The en banc court also explained that the fact Moncrieffe

involved the question of whether the petitioner was

removable, not whether the petitioner was eligible for

cancellation of removal, did not change the analysis,

observing that the Supreme Court explicitly explained in

Moncrieffe that the categorical analysis is the same in both

the removal and cancellation of removal contexts. However,

the government had argued that Moncrieffe’s analysis does

not extend to cancellation of removal because the government

bears the burden in the removal context, while the petitioner

bears the burden in the cancellation of removal context. The

en banc court rejected that argument, explaining that the key

question here addressed a question of law: What do the

uncontested documents in the record establish about the

elements of the crime of conviction with the requisite

certainty? The en banc court concluded that this legal query

required no factual finding and was therefore unaffected by

statutory burdens of proof.

The en banc court noted that the predicate factual

question that would be relevant to this analysis was whether

all relevant and available documents had been produced, but

MARINELARENA V. SESSIONS 5

the en banc court explained that this question implicated a

possible burden of production, not the burden of proof.

Because the BIA did not address whether all the relevant

documents had been produced, the en banc court remanded to

the BIA to consider in the first instance the placement and

scope of the burden of production for Shepard documents as

it applies in cancellation of removal.

Finally, because the en banc court panel held that

Marinelarena’s conviction was not a controlled substance

offense barring cancellation of removal, the en banc court

concluded it need not reach the issue of the effect of the

expungement of Marinelarena’s conviction.

Dissenting, Judge Ikuta, joined by Judges Graber and

Rawlinson, wrote that the majority confused the relevant

legal and factual issues, thereby creating a new rule that,

when an alien has a prior conviction under a state statute that

includes multiple, alternative versions of the offense, and

there is insufficient evidence in the record to prove which of

those alternative versions the alien was convicted of, the court

must assume as a matter of law that the alien’s conviction did

not match the federal generic offense. Judge Ikuta wrote that

the majority’s new rule: (1) finds no support in Moncrieffe;

(2) is contrary to Young, which Judge Ikuta explained was not

overruled by Moncrieffe because the cases address entirely

distinct issues; (3) conflicts with the majority of sister

circuits; (4) is contrary to the Immigration & Nationality Act

in that the majority’s new rule overrides the statute and

regulation that put the burden on the alien to establish

eligibility for relief; and (5) will encourage aliens to withhold

and conceal evidence.

6 MARINELARENA V. SESSIONS

COUNSEL

Brian P. Goldman (argued), Orrick Herrington & Sutcliffe

LLP, San Francisco, California; Benjamin P. Chagnon,

Thomas M. Bondy, and Robert M. Loeb, Orrick Herrington

& Sutcliffe LLP, Washington, D.C.; Andrew Knapp,

Southwestern Law School, Los Angeles, California; for

Petitioner.

Tim Ramnitz (argued), Attorney; Patrick J. Glen, Senior

Litigation Counsel; John W. Blakeley, Assistant Director;

Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, D.C.; for

Respondent.

Jayashri Srikantiah and Jennifer Stark, Immigrants’ Rights

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

California; Andrew Wachtenheim and Manuel Vargas,

Immigrant Defense Project, New York, New York; for Amici

Curiae Immigrant Defense Project, American Immigration

Lawyers Association, Asian Americans Advancing Justice-

Asian Law Caucus, Community Legal Services in East Palo

Alto, Detention Watch Network, Florence Immigrant and

Refugee Rights Project, Heartland Alliance’s National

Immigrant Justice Center, Immigrant Legal Resource Center,

National Immigration Law Center, National Immigration

Project of the National Lawyers Guild, Northwest Immigrant

Rights Project, Public Counsel, and U.C. Davis Immigration

Law Clinic.

MARINELARENA V. SESSIONS 7

Sarah L. Rosenbluth and Christopher G. Clark, Boston,

Massachusetts; Philip L. Torrey, Managing Attorney,

Harvard Immigration and Refugee Clinical Program,

Cambridge, Massachusetts; Jason A Cade, Athens, Georgia;

Carrie L. Rosenbaum, San Francisco, California; for Amici

Curiae Immigration Law Professors.

OPINION

TASHIMA, Circuit Judge:

We must decide whether, in the context of eligibility for

cancellation of removal under 8 U.S.C. § 1229b(b), a record

that is ambiguous as to whether a state law conviction

constitutes a predicate offense that would bar a petitioner

from relief actually does bar relief. We hold that it does not.

Petitioner Aracely Marinelarena (“Marinelarena”), a

noncitizen who last entered the United States in 2000,

conceded that she was removable, but petitioned for

cancellation of removal under 8 U.S.C. § 1229b(b). The

immigration judge (“IJ”) denied her relief, and the Board of

Immigration Appeals (“BIA”) affirmed, holding that

Marinelarena had failed to demonstrate that her prior

conviction was not for a disqualifying federal offense and,

therefore, had not met her burden of showing that she was

eligible for cancellation of removal. Marinelarena petitioned

for review of the BIA’s final decision. We grant her petition,

reverse the BIA’s determination, and remand to the agency.

We hold that the statute under which Marinelarena was

convicted was overbroad at the time of her conviction. We

further hold, overruling our previous decision in Young v.

8 MARINELARENA V. SESSIONS

Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), that, under

Moncrieffe v. Holder, 569 U.S. 184 (2013), an ambiguous

record of conviction does not demonstrate that a petitioner

was convicted of a disqualifying federal offense. We do not

reach the issue of whether there is a separate burden of

production in the cancellation of removal context and, if so,

who bears it, and remand to the BIA to consider this issue in

the first instance.

FACTUAL AND PROCEDURAL BACKGROUND

Marinelarena, a native and citizen of Mexico, first entered

the United States in 1992. After living in the United States

for a number of years, she returned to Mexico briefly in 1999,

but re-entered the United States in 2000 following inspection

and admission. Marinelarena has lived in the United States

since and has two children who are United States citizens.

In 2000, on a plea of nolo contendere, Marinelarena was

convicted of a misdemeanor under California Penal Code

§ 529 for false personation of another. In 2006, she was

charged with one count of conspiracy to commit a felony in

violation of California Penal Code § 182(a)(1),1 namely

conspiring to sell and transport a controlled substance in

violation of California Health and Safety Code § 11352.2 The

1

California Penal Code § 182(a)(1) applies when “two or more

persons conspire: (1) To commit any crime.”

2

California Health and Safety Code § 11352 provides:

(a) Except as otherwise provided in this division, every

person who transports, imports into this state, sells,

furnishes, administers, or gives away, or offers to

transport, import into this state, sell, furnish,

MARINELARENA V. SESSIONS 9

complaint listed a number of overt acts in support, only one

of which referenced a specific controlled substance, heroin.

Marinelarena pleaded guilty and was convicted of violating

California Penal Code § 182(a)(1) on March 26, 2007. She

was fined, sentenced to three years of probation, and 136 days

in county jail. Following her conviction, Marinelarena filed

separate petitions in state court under California Penal Code

§ 1203.4 to expunge her false personation and conspiracy

convictions. In 2009, California courts granted both of

Marinelarena’s petitions, vacating her § 529 and § 182(a)(1)

convictions.

Meanwhile, on March 28, 2007, following her conspiracy

conviction, the Department of Homeland Security served

Marinelarena with a notice to appear for removal

proceedings. The notice charged her with removability as an

alien who had remained in the United States longer than

permitted, in violation of 8 U.S.C. § 1227(a)(1)(B).

Marinelarena conceded removability, but applied for

cancellation of removal under 8 U.S.C. § 1229b(b).

administer, or give away, or attempts to import into this

state or transport (1) any controlled substance specified

in subdivision (b), (c), or (e), or paragraph (1) of

subdivision (f) of Section 11054, specified in paragraph

(14), (15), or (20) of subdivision (d) of Section 11054,

or specified in subdivision (b) or (c) of Section 11055,

or specified in subdivision (h) of Section 11056, or

(2) any controlled substance classified in Schedule III,

IV, or V which is a narcotic drug, unless upon the

written prescription of a physician, dentist, podiatrist,

or veterinarian licensed to practice in this state, shall be

punished by imprisonment pursuant to subdivision (h)

of Section 1170 of the Penal Code for three, four, or

five years.

10 MARINELARENA V. SESSIONS

At a removal hearing in 2011, the IJ noted that

Marinelarena’s conspiracy conviction had been expunged

under California Penal Code § 1203.4, but stated that such an

expungement would not eliminate the conviction for

immigration purposes, unless the dismissal had been on

constitutional grounds. The IJ continued the hearing,

instructing Marinelarena to submit any documents or briefing

as to why she remained eligible. Accordingly, she submitted

a brief arguing that she remained eligible for cancellation of

removal despite her § 182(a)(1) conviction. She argued that,

because the conviction documents in the record did not

identify that the crime of conviction rested on a specific

controlled substance, her conviction did not constitute a

controlled substance offense as defined by the Controlled

Substances Act (“CSA”), 21 U.S.C. § 802.

The IJ rendered an oral decision in 2012, holding that

Marinelarena had failed to demonstrate eligibility for

cancellation of removal and ordering her removed to Mexico.

The IJ determined that although her conviction under § 529

for false personation had been expunged, that expungement

did not disqualify it for immigration purposes and the

conviction constituted a crime involving moral turpitude

under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ also found that,

“more importantly,” her crime “for conspiracy to distribute

heroin”—as the IJ construed the criminal complaint—would

also bar her from relief. Consequently, the IJ denied her

relief.

On appeal, the BIA also held that Marinelarena had the

burden of establishing that her conspiracy conviction was not

a disqualifying offense, and that she had not met that burden.

The BIA explained that California Health and Safety Code

§ 11352 is broader than the CSA with respect to the

MARINELARENA V. SESSIONS 11

substances covered, 21 U.S.C. § 802, but divisible, and that

Marinelarena had failed to submit any evidence showing that

she was not convicted of a disqualifying controlled substance

offense. Therefore, the BIA ruled, Marinelarena had not

established that she was eligible for cancellation of removal.

The BIA did not discuss her conviction under California

Penal Code § 529, nor did it discuss the expungement of

either conviction.

Marinelarena timely petitioned for review. A three-judge

panel, in a split decision, denied in part and dismissed in part

the petition. Marinelarena v. Sessions, 869 F.3d 780, 792

(9th Cir. 2017). We then granted rehearing en banc.

Marinelarena v. Sessions, 886 F.3d 737 (9th Cir. 2018).3

STANDARD OF REVIEW

We review questions of law de novo. Coronado v.

Holder, 759 F.3d 977, 982 (9th Cir. 2014).

DISCUSSION

I. Conviction for a Controlled Substance Offense

To be eligible for cancellation of removal under 8 U.S.C.

§ 1229b(b), Marinelarena must meet four requirements,4

3

The order granting rehearing en banc effectively vacated the three-

judge panel opinion. Id. (“The three-judge panel opinion shall not be cited

as precedent by or to any court of the Ninth Circuit.”).

4

To be eligible for cancellation of removal, a petitioner must show

that: (A) she “has been physically present in the United States” for at least

ten years; (B) she “has been a person of good moral character during such

period”; (C) she “has not been convicted of an offense under section

12 MARINELARENA V. SESSIONS

including, as relevant here, that she has not been convicted of

a “controlled substance” offense, 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). Thus, the central question on appeal

is whether Marinelarena’s California-state-law conviction for

conspiracy to sell and transport a controlled substance

constitutes a controlled substance offense under federal law

for the purposes of § 1229b(b).

In order to determine whether a state conviction

constitutes a predicate offense for immigration purposes, this

court employs the now-familiar three-step process derived

from Taylor v. United States, 495 U.S. 575 (1990). See

Medina-Lara v. Holder, 771 F.3d 1106, 1111–12 (9th Cir.

2014). “First, we ask whether the state law is a categorical

match with a federal [controlled substance] offense[,] . . .

look[ing] only to the ‘statutory definitions’ of the

corresponding offenses.” United States v. Martinez-Lopez,

864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (quoting

Taylor, 495 U.S. at 600), cert. denied, 138 S. Ct. 523 (2017).

“If a state law ‘proscribes the same amount of or less conduct

than’ that qualifying as a federal drug trafficking offense,

then the two offenses are a categorical match.” Id. (quoting

United States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir.

2014) (per curiam)); see also Descamps v. United States,

570 U.S. 254, 257 (2013) (holding that a state offense and a

federal offense are a categorical match if “the [state] statute’s

elements are the same as, or narrower than, those of the

generic [federal] offense”).

1182(a)(2), 1227(a)(2), or 1227(a)(3)”; and (D) “removal would result in

exceptional and extremely unusual hardship” to her family members who

are United States citizens, in this case her two children. 8 U.S.C.

§ 1229b(b)(1)(A)–(D).

MARINELARENA V. SESSIONS 13

If not—i.e., if the state statute criminalizes a broader

range of conduct than does the federal offense—we continue

to the second step: asking whether the statute of conviction

is “divisible.” Id. A state offense is “divisible” if it has

“‘multiple, alternative elements, and so effectively creates

several different crimes.’” Almanza-Arenas v. Lynch,

815 F.3d 469, 476 (9th Cir. 2016) (en banc) (quoting

Descamps, 570 U.S. at 264). “Alternatively, if [the offense]

has a ‘single, indivisible set of elements’ with different means

of committing one crime, then it is indivisible and we end our

inquiry, concluding that there is no categorical match.” Id. at

476–77 (quoting Descamps, 570 U.S. at 265).

If the statute is both overbroad and divisible, we continue

to the third step and apply the “modified categorical

approach.” Martinez-Lopez, 864 F.3d at 1039. “At this step,

we examine judicially noticeable documents of conviction ‘to

determine which statutory phrase was the basis for the

conviction.’” Id. (quoting Descamps, 570 U.S. at 263).

When doing so, we can consider only a restricted set of

materials, including “the charging document, the terms of a

plea agreement,” the “transcript of [the plea] colloquy,” and

“comparable judicial record[s].” Shepard v. United States,

544 U.S. 13, 26 (2005) (plurality opinion); see also Lopez-

Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015). In

examining these documents, our focus is on whether

petitioner was “necessarily” convicted of a state-law crime

with the same “basic elements” as the generic federal crime,

not on the underlying facts of the conviction. Descamps,

570 U.S. at 260–61, 263.

We agree with Marinelarena that California Penal Code

§ 182(a)(1) is overbroad, and we assume for purposes of this

14 MARINELARENA V. SESSIONS

appeal that it is divisible. Therefore, we apply the modified

categorical approach.

A. Categorical Approach

First, we consider whether Marinelarena’s conspiracy

conviction is a categorical match to the relevant generic

federal offense. California Penal Code § 182(a)(1) punishes

a broader range of conduct than either 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) or § 1227(a)(2)(B)(I). A defendant

could be convicted under § 182(a)(1) for any criminal

conspiracy, whether or not it relates to a controlled substance.

A conviction under § 182(a)(1), therefore, cannot count as a

controlled substance offense under the categorical approach.

See, e.g., United States v. Trent, 767 F.3d 1046, 1052 (10th

Cir. 2014) (holding that a conspiracy conviction under Okla.

Stat. Ann. tit. 21, § 421(A)—a statute textually similar to

California Penal Code § 182(a)(1)—is not a serious drug

offense under the categorical approach because “the statute

could be violated in many ways that have nothing to do with

drugs”), abrogated on other grounds by Mathis v. United

States, 136 S. Ct. 2243, 2251 (2016).

B. Divisibility

Having determined that § 182(a)(1) is not a categorical

match, we normally next turn to the question of divisibility.

However, for our purposes, it is sufficient to assume that

§ 182(a)(1) is divisible both as to the predicate crime

underlying the conspiracy (here, § 11352) and as to the

controlled substance element of § 11352, for, as explained

below, it would make no difference in the outcome of this

case if it were not.

MARINELARENA V. SESSIONS 15

C. Modified Categorical Approach

1. Analyzing the Shepard Documents

We proceed to step three, the modified categorical

approach, and “examine judicially noticeable documents of

conviction” to determine the basis for petitioner’s conviction.

Martinez-Lopez, 864 F.3d at 1039. Here, the only judicially

noticeable document in the record relating to Marinelarena’s

criminal offense is the criminal complaint, which identifies

the target offense of the conspiracy as selling and transporting

a controlled substance in violation of California Health and

Safety Code § 11352. The complaint identifies sixteen overt

acts, only one of which references a specific controlled

substance, heroin. But a complaint alone is insufficient to

prove a conviction related to a particular controlled

substance, see Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152

(9th Cir. 2003) (noting that where a defendant enters a guilty

plea, “charging papers alone are never sufficient” to establish

the elements of conviction (quoting United States v. Corona-

Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002))), and the

record contains no plea agreement, plea colloquy, or

judgment to establish the elements on which Marinelarena’s

conviction under § 182(a)(1) rested.

Therefore, even though heroin is a controlled substance

under federal law, see 21 U.S.C. § 802(6) (defining

“controlled substance” by reference to statutory schedules,

including Schedule I); 21 U.S.C. § 812, Schedule I (b)(10)

(listing heroin on Schedule I), the record is inconclusive as to

whether Marinelarena’s plea included the sole heroin

allegation in the complaint, which was not necessary to

conviction for the conspiracy offense. Because

Marinelarena’s guilty plea could have rested on an overt act

16 MARINELARENA V. SESSIONS

that did not relate to heroin, we cannot assume her conviction

was predicated on an act involving a federal controlled

substance. Thus, the record of her conviction is ambiguous

as to whether Marinelarena’s conviction related to a federal

controlled substance.

Here, the BIA found that, considering the complaint,

Marinelarena had failed to carry her burden of establishing

that she was not convicted of a disqualifying controlled

substance offense. Previously, we had held that when the

record of conviction is ambiguous after analyzing the

Shepard documents, a petitioner is ineligible for cancellation

of removal because she has not met her burden of showing

that she was not convicted of a disqualifying federal offense.5

See Young, 697 F.3d at 990. Subsequent Supreme Court

decisions, however, have brought into question the

foundation of this conclusion. See Moncrieffe v. Holder,

569 U.S. 184, 189–90 (2013); Descamps, 570 U.S. at 263–64.

We therefore granted rehearing en banc to reconsider our

earlier decision.

2. Ambiguous Record of Conviction

In Young, we held en banc that a petitioner cannot

establish her eligibility for cancellation of removal by

showing that the record of conviction is inconclusive as to

whether she was convicted of a disqualifying offense.

697 F.3d at 988–89. Thus, under Young, Marinelarena must

prove that she was not convicted of a controlled substance

5

This presumption, that the burden rested on the petitioner, may be

why the BIA did not inquire as to whether other Shepard documents were

available to clarify Marinelarena’s record of conviction.

MARINELARENA V. SESSIONS 17

offense in order to establish her eligibility for cancellation of

removal.

Marinelarena contends, however, that Young is

incompatible with the Supreme Court’s subsequent decision

in Moncrieffe. We agree, and so hold. Under Moncrieffe,

ambiguity in the record as to a petitioner’s offense of

conviction means that the petitioner has not been convicted

of an offense disqualifying her from relief.6

6

The Circuits are split on this issue. The First Circuit reached the

same conclusion as we do in Sauceda v. Lynch, 819 F.3d 526, 533–34 (1st

Cir. 2016), holding that Moncrieffe dictates that an ambiguous record of

conviction does not demonstrate a disqualifying offense in both the

removal and cancellation of removal contexts. The Second Circuit has

reached a similar conclusion, though prior to Moncrieffe. See Martinez v.

Mukasey, 551 F.3d 113, 122 (2d Cir. 2008) (holding that the BIA “erred

by placing the burden on [the petitioner] to show that his conduct was the

equivalent of a federal misdemeanor”).

The Tenth, Sixth, and Eighth Circuits, however, reached the opposite

conclusion, holding that Moncrieffe does not extend to cancellation of

removal. See Lucio-Rayos v. Sessions, 875 F.3d 573, 582 (10th Cir.

2017), cert. denied sub nom. Lucio-Rayos v. Whitaker, 139 S. Ct. 865

(2019); Gutierrez v. Sessions, 887 F.3d 770, 776 (6th Cir. 2018), cert.

denied sub nom. Gutierrez v. Whitaker, 139 S. Ct. 863 (2019); Pereida v.

Barr, 916 F.3d 1128, 1132–33 (8th Cir. 2019). But the Tenth Circuit’s

decision relied heavily on our panel majority opinion in Marinelarena,

which has now been effectively vacated, see footnote 3, supra, and the

Sixth Circuit’s rested on the same reasoning, see Lucio-Rayos, 875 F.3d

at 582–83; Gutierrez, 887 F.3d at 776–77. The Eighth Circuit’s decision,

considered the question in a single paragraph, citing to the Tenth Circuit’s

decision in Lucio-Reyes as support and without any consideration of the

potential effect of Moncrieffe. See Pereida, 916 F.3d at 1133. We decline

to follow the Tenth, Sixth, and Eighth Circuits for the reasons discussed

infra.

18 MARINELARENA V. SESSIONS

In Moncrieffe, the Supreme Court explained the

framework for applying the categorical approach to determine

whether a noncitizen has committed an aggravated felony, as

defined by the Immigration and Nationality Act (“INA”).

569 U.S. at 191. In cases applying the categorical approach,

courts compare the elements of a noncitizen’s offense of

conviction to those of a generic federal offense that would

disqualify her from relief. See Descamps, 570 U.S. at 260.

The Court in Moncrieffe reiterated that, under the categorical

approach, courts should “look ‘not to the facts of the

particular prior case,’ but instead to whether ‘the state statute

defining the crime of conviction’ categorically fits within the

‘generic’ federal definition of a corresponding aggravated

felony.” Moncrieffe, 569 U.S. at 190 (quoting Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 186 (2007)). “[A] state

offense is a categorical match with a generic federal offense

only if a conviction of the state offense ‘“necessarily”

involved . . . facts equating to [the] generic [federal

offense].’” Id. (alterations in original) (emphasis added)

(quoting Shepard, 544 U.S. at 24). “Whether the noncitizen’s

actual conduct involved such facts ‘is quite irrelevant.’” Id.

(quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,

400 (2d Cir. 1939)).

The Court in Moncrieffe further stated that, if a statute

contains multiple, alternative versions of a crime (that is, if

The Seventh Circuit has nodded toward the issue in dicta, but has not

squarely addressed it, see Sanchez v. Holder, 757 F.3d 712, 720 n.6 (7th

Cir. 2014), and the question remains open in the Fifth Circuit. See Le v.

Lynch, 819 F.3d 98, 107 n.5 (5th Cir. 2016) (expressly reserving the

question); Gomez-Perez v. Lynch, 829 F.3d 323, 326 n.1 (5th Cir. 2016)

(noting the question remains open). Similarly, the Eleventh Circuit has

not reached a conclusion on this issue. See Francisco v. U.S. Attorney

Gen., 884 F.3d 1120, 1134 n.37 (11th Cir. 2018).

MARINELARENA V. SESSIONS 19

the statute is divisible), “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 191 (emphasis added) (quoting Nijhawan v.

Holder, 557 U.S. 29, 35 (2009)). The Court labeled this

inquiry as a whole the “categorical approach,” as opposed to

distinguishing between the categorical and modified

categorical approaches. Id. at 192.

Most important for this case is the Court’s response in

Moncrieffe to the government’s argument that the petitioner

had committed a “felony punishable under the [CSA],” which

qualifies as an aggravated felony that would allow the

petitioner to be deported. Id. at 188. The Court disagreed

with that argument. Id. at 190. The record established that

Moncrieffe had been convicted under a state statute

proscribing conduct that constitutes an offense under the

CSA, but the record was ambiguous as to whether the CSA

would “‘necessarily’ prescribe felony punishment for that

conduct.” Id. at 192 (emphasis added). The Court held that

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

‘necessarily’ involve facts that correspond to an offense

punishable as a felony under the CSA.” Id. at 194–95.

“Under the categorical approach, then, Moncrieffe was not

convicted of an aggravated felony” allowing him to be

deported. Id. at 195.

This mode of analysis is clearly irreconcilable with

Young. Young holds that ambiguity in the record as to which

elements underlay the petitioner’s conviction means that, for

purposes of cancellation of removal, she has failed to prove

that she was not convicted of the disqualifying offense

20 MARINELARENA V. SESSIONS

contained in a divisible statute. 697 F.3d at 988–89.

Moncrieffe holds the opposite: If the record does not

conclusively establish that the noncitizen was convicted of

the elements of the generic offense, then she was not

convicted of the offense for purposes of the immigration

statutes. 569 U.S. at 194–95.

That Moncrieffe involved the question of whether the

petitioner was removable, not whether the petitioner was

eligible for cancellation of removal, does not change our

analysis. The Supreme Court explicitly explained in

Moncrieffe that the categorical “analysis is the same in both

[the removal and cancellation of removal] contexts.” Id. at

191 n.4 (emphasis added). Moreover, any such distinction

would have led to an exceedingly odd result in Moncrieffe

itself—Moncrieffe would have been not removable as an

aggravated felon, as the Court held, yet, based on the same

conviction, would be ineligible for asylum or cancellation of

removal, also alluded to in the opinion. Id. at 187.

Therefore, the question in both contexts is whether the

conviction “necessarily” involved elements that correspond

to a federal offense. Id. at 194.7

The government argues that, despite the Supreme Court’s

statement to the contrary, Moncrieffe’s analysis does not

extend to the cancellation of removal context because the

statutory burdens of proof differ. In the removal context, the

7

As the First Circuit explained in Sauceda, “[t]his conclusion follows

from the fact that the underlying statutory language is the same in both”

the removability and cancellation of removability contexts. 819 F.3d at

534. Thus, “‘[c]onviction’ is ‘the relevant statutory hook,’” and has a

“formal, legal definition governed by the presumption explained [in

Moncrieffe].” Id. (quoting Moncrieffe, 569 U.S. at 191).

MARINELARENA V. SESSIONS 21

government bears the burden of “establishing by clear and

convincing evidence” that a noncitizen is deportable, 8 U.S.C.

§ 1229a(c)(3)(A). But, the government argues, the petitioner

bears the burden of demonstrating that she is eligible for

cancellation of removal under 8 U.S.C. § 1229a(c)(4). While

this may be true, that distinction has no bearing on the

conclusion reached in Moncrieffe, because the key question

in the categorical approach—like the modified categorical

approach—addresses a question of law: What do the

uncontested documents in the record establish about the

elements of the crime of conviction with the requisite

certainty? That legal query requires no factual finding and is

therefore unaffected by statutory “burdens of proof.”

An analysis of Moncrieffe and subsequent Supreme Court

cases demonstrates that the categorical approach, and by

extension the modified categorical approach, poses a

fundamentally legal question. The categorical approach

involves an “abstract” inquiry, focused on whether a

petitioner was “necessarily” convicted of a disqualifying

offense. Moncrieffe, 569 U.S. at 190–91. The Supreme

Court has repeatedly explained that Congress intended to

limit the assessment “‘to a legal analysis of the statutory

offense,’ and to disallow ‘[examination] of the facts

underlying the crime.’” Mellouli v. Lynch, 135 S. Ct. 1980,

1986 (2015) (alteration in original) (quoting Alina Das, The

Immigration Penalties of Criminal Convictions: Resurrecting

Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev.

1669, 1688, 1690 (2011)). Thus, when applying the

categorical approach, “[a]n alien’s actual conduct is irrelevant

to the inquiry,” because we must “‘presume that the

conviction rested upon nothing more than the least of the acts

criminalized’ under the state statute.” Id. (quoting

Moncrieffe, 569 U.S. at 190–91). Hence, the categorical

22 MARINELARENA V. SESSIONS

approach mandates a legal inquiry, not a determination of a

question of fact to which the burden of proof concept applies.

The same reasoning pertains to the modified categorical

approach. The modified categorical approach is merely a

“version of [the categorical] approach,” Mellouli, 135 S. Ct.

at 1986 n.4, that “serves a limited function: It helps

effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders

opaque which element played a part in the defendant’s

conviction.” Descamps, 570 U.S. at 260. Thus, using the

modified categorical approach, “a court may determine which

particular offense the noncitizen was convicted of by

examining” certain Shepard documents; “[o]ff limits to the

adjudicator, however, is any inquiry into the particular facts

of the case.” Mellouli, 135 S. Ct. at 1986 n.4 (emphasis

added); see also Descamps, 570 U.S. at 278 (“The modified

approach does not authorize a sentencing court to substitute

such a facts-based inquiry for an elements-based one.”).

As a result, whether the record of conviction necessarily

established the elements of the disqualifying federal offense

“is a legal question with a yes or no answer.” Almanza-

Arenas, 815 F.3d at 489 (Watford, J., concurring). And, as a

pure question of law, it is unaffected by statutory burdens of

proof. See Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91,

114 (2011) (Breyer, J., concurring) (“[T]he evidentiary

standard of proof applies to questions of fact and not to

questions of law.”).

The dissent contends that the Shepard inquiry is “factual”

in nature followed by a separate legal inquiry: “[i]f the court

can determine the version of the offense, the court then

proceeds to the legal inquiry.” Dissent Op. 43, 44. But the

MARINELARENA V. SESSIONS 23

Supreme Court has been clear that the Shepard inquiry is not

an “evidence-based one;” instead, determining the version of

the offense—the “elements-based inquiry”—is the legal

inquiry. Descamps, 570 U.S. at 266–67.

To the extent that there may be a predicate factual

question, it would be whether all relevant and available

documents have been produced. But this question implicates

a possible burden of production, which we need not and do

not address here, not the burden of proof. Once all relevant

and available Shepard documents have been produced,

nothing remains inconclusive—the documents either show

that the petitioner was convicted of a disqualifying offense

under the categorical approach, or they do not. What the

documents show is thus a purely legal question, to which the

burden of proof is irrelevant.

This conclusion does not in any respect “entirely negate”

the statutory burden of proof nor does it “presuppose

eligibility,” as the government argues. A petitioner still bears

the burden of proof for all factual inquiries; under 8 U.S.C.

§ 1229a(c)(4), Marinelarena still bears the burden of showing

that she has been physically present in the United States for

ten or more continuous years, has been a person of good

moral character, and that her citizen children would suffer

“exceptional and extremely unusual hardship” on her

removal, as those are questions of fact. 8 U.S.C.

§ 1229b(b)(1); see also Moncrieffe, 569 U.S. at 204

(“[H]aving been found not to be an aggravated felon, the

noncitizen may seek relief from removal such as asylum or

cancellation of removal, assuming he satisfies the other

eligibility criteria.” (emphasis added)). In short, because the

categorical and modified categorical approaches “answer[]

the purely ‘legal question of what a conviction necessarily

24 MARINELARENA V. SESSIONS

established,’” the burden of proof “does not come into play.”

Sauceda, 819 F.3d at 534 (quoting Mellouli, 135 S. Ct. at

1987).

The government and dissent both contend, however, that

Moncrieffe’s analysis is limited to the categorical approach

and therefore has no bearing on the application of the

modified categorical approach in this case. See Dissent Op.

48. But this argument also fails. The purported distinction

overstates the difference between the categorical and

modified categorical approaches. As the Supreme Court has

noted, the modified categorical approach is “a tool for

implementing the categorical approach” that allows a court

“to examine a limited class of documents to determine which

of a statute’s alternative elements formed the basis of the

defendant’s prior conviction.” Descamps, 570 U.S. at 262

(emphasis added).

Accordingly, the dissent’s protestations that Moncrieffe

is irrelevant to this case because Moncrieffe involved only the

categorical approach, Dissent Op. 48–50, fall flat; as

Descamps, Mellouli, and Moncrieffe itself demonstrate, the

modified categorical approach is part and parcel of the

categorical approach. To attempt to clinically separate any

discussion of the two phases as unrelated ignores that the

modified categorical approach “retains the categorical

approach’s central feature: a focus on the elements, rather

than the facts, of a crime. And it preserves the categorical

approach’s basic method: comparing those elements with the

generic offense’s.” Descamps, 570 U.S. at 263. The

categorical approach is merely the “mechanism for making

that comparison.” Id.

MARINELARENA V. SESSIONS 25

Thus, in Moncrieffe, the Court outlined both what we

have called the “categorical” step of the analysis and the

“modified categorical” step of the analysis, and then labeled

the inquiry as a whole “the categorical approach.”

Moncrieffe, 569 U.S. at 191–92 (outlining the categorical and

modified categorical analysis and stating that “[t]his

categorical approach has a long pedigree in our Nation’s

immigration law”). That is because the relevant inquiry in

both categorical and modified categorical cases is the same:

A court must compare the elements of the offense of which

the noncitizen was convicted to the elements of a generic

federal offense disqualifying her from relief, and then

determine what facts are necessarily established by that

conviction. The only difference between the two approaches

is that, in modified categorical cases, a statute lists “multiple,

alternative versions of [a] crime,” Descamps, 570 U.S. at 262,

so the court must look to the record of conviction to

determine “which particular offense the noncitizen was

convicted of.” Moncrieffe, 569 U.S. at 191. Once that

determination is made, the relevant question is the same as

that in categorical cases: A court must ask what the

noncitizen’s conviction necessarily involved, “not what acts

[the noncitizen] committed.” Id.8

8

The dissent argues that we are misreading the paragraph in

Moncrieffe from which this quote, and several other relevant quotes,

originate. Dissent Op. 50–52. The relevant paragraph reads:

This categorical approach has a long pedigree in our

Nation’s immigration law. See Das, The Immigration

Penalties of Criminal Convictions: Resurrecting

Categorical Analysis in Immigration Law, 86 N.Y.U. L.

Rev. 1669, 1688–1702, 1749–1752 (2011) (tracing

judicial decisions back to 1913). The reason is that the

INA asks what offense the noncitizen was “convicted”

of, 8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he

26 MARINELARENA V. SESSIONS

committed. “[C]onviction” is “the relevant statutory

hook.” Carachuri-Rosendo v. Holder, 560 U.S. —, —,

130 S. Ct. 2577, 2588, 177 L.Ed.2d 68 (2010); see

United States ex rel. Mylius v. Uhl, 210 F. 860, 862

(C.A.2 1914).

569 U.S. at 191. The dissent reads this paragraph as merely explaining

that the categorical approach applies in the immigration context. Dissent

Op. 51. The dissent is correct that this section makes clear that the

categorical approach applies in the immigration context; the first sentence

says as much. Moncrieffe, 569 U.S. at 191. But the debate in Moncrieffe

was not over whether the categorical approach applied in the immigration

context, but rather over how it is to be applied. See, e.g., id. at 195

(explaining the government’s argument that only the elements of the

offense, and not related sentencing factors, are considered in the

categorical approach). In light of that, the rest of the paragraph and the

citations therein serve to elucidate the precedent and rationales the Court

uses to define the contours of that application.

The first law review article cited itself describes the “century of

precedent that fleshes out the contours and rationales for [the categorical]

approach.” Das, The Immigration Penalties of Criminal Convictions:

Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev.

1669, 1689 (2011). In particular, the section cited to by the Court focuses

on the cases’ uniform refusal to consider underlying facts of conviction

and their acceptance of an abstract, elements-based inquiry. See, e.g., id.

at 1694 (describing a Second Circuit case in which the court noted that

immigration officials could examine a record of conviction “only to

determine ‘the specific criminal charge of which the alien is found guilty

and for which he is sentenced.’ In other words, ‘[i]f an indictment

contains several counts, one charging a crime involving moral turpitude

and others not, the record of conviction would, of course, have to show

conviction and sentence on the first count to justify deportation’”

(alteration in original) (footnote omitted) (quoting United States ex rel.

Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933))). As this discussion

shows, throughout its long history the categorical approach has been

considered a legal, elements-based approach.

MARINELARENA V. SESSIONS 27

In Mathis, the Supreme Court reaffirmed that the

categorical and modified categorical approaches are two

aspects of the same analysis. The Court stated that, “when a

statute sets out a single (or ‘indivisible’) set of elements to

define a single crime,” a court should “line[] up that crime’s

elements alongside those of the generic offense and see[] if

they match.” 136 S. Ct. at 2248. “Some statutes, however,

have a more complicated (sometimes called ‘divisible’)

structure, making the comparison of elements harder.” Id. at

2249. Cases involving such statutes apply the modified

categorical approach. Under this approach, “a sentencing

court looks to a limited class of documents (for example, the

indictment, jury instructions, or plea agreement and colloquy)

to determine what crime, with what elements, a defendant

was convicted of.” Id. “The court can then compare that

crime, as the categorical approach commands, with the

relevant generic offense.” Id. (emphasis added). The

Supreme Court has similarly disregarded a distinction

This conclusion is buoyed by the fact that Carachuri-Rosendo, to

which the Court also cites in the paragraph, rejected broadening the

categorical approach to include a “hypothetical approach” wherein “all

‘conduct punishable as a felony’ [would be treated] as the equivalent of

a ‘conviction’ of a felony” for immigration purposes. Carachuri-Rosendo,

560 U.S. at 575. And the final citation in the paragraph is to a 1914 case,

United States ex rel. Mylius v. Uhl, where the court queried, “[d]oes the

publication of a defamatory libel necessarily involve moral turpitude?”

and answered, “[i]t is not enough that the evidence shows that the

immigrant has committed such a crime, the record must show that he was

convicted of the crime.” 210 F. 860, 862 (2d Cir. 1914).

Still, the dissent argues that this context is irrelevant, because it

“sheds no light on the question relevant here: who bears the burden of

proving what the petitioner was convicted of.” Dissent Op. 51–52 n.16.

But what this context illuminates is the fact that it is the burden of proof

that is irrelevant, because the categorical approach is and has been a

fundamentally abstract, legal inquiry.

28 MARINELARENA V. SESSIONS

between the two approaches in other cases. See Taylor,

495 U.S. at 600–02 (referring to both methods as the

“categorical approach”); Duenas-Alvarez, 549 U.S. at 187

(same, but noting that “some courts refer to this step of the

Taylor inquiry as a ‘modified categorical approach’”).

In other words, whether a case applies what we have

called the “categorical” or the “modified categorical”

approach, the “analysis is the same.” Moncrieffe, 569 U.S. at

191 n.49: The court asks whether the noncitizen was

9

The dissent also attempts to dismiss footnote 4 from the

aforementioned Moncrieffe paragraph, see Moncrieffe, 569 U.S. at 191 n.4

(explaining that the “analysis is the same in both [the removal and

cancellation of removal] contexts”), as explaining merely that the

categorical approach applies the same way in both the cancellation and

removal contexts. Dissent Op. 52. We do not disagree with the dissent

on this point; the categorical approach does apply the same way in the

removal and cancellation of removal contexts—in both cases, the court

looks to whether the petitioner was “necessarily” convicted of a

disqualifying federal offense. Moncrieffe, 569 U.S. at 194. That is why

Carachuri-Rosendo’s rationale translates seamlessly to Moncrieffe. See

Dissent Op. 52–54; Moncrieffe, 569 U.S. at 191, 195, 196, 197, 198, 199,

200, 201, 204, 205, 206 (citing to Carachuri-Rosendo when explaining

why the court must reject the government’s attempt to inject a

“hypothetical” element into the categorical approach). Where we part

ways with the dissent is in our view that the categorical approach

encompasses the modified categorical approach.

In the same vein, the dissent rightly notes that Moncrieffe did not cite

Carachuri-Rosendo to make a point about the burden of proof in

immigration cases. Dissent Op. 53. But that is because the burden of

proof does not affect the application of the categorical, and by extension

modified categorical, approach. There was no point to make. The

question in Moncrieffe, the question in Carachuri-Rosendo, and the

question here is whether the noncitizen has necessarily been “convicted of

any aggravated felony.” Dissent Op. 52. The burden of proof is

irrelevant; if the statute is indivisible, or the Shepard documents

MARINELARENA V. SESSIONS 29

necessarily convicted of an offense disqualifying her from

relief. If the record of conviction is ambiguous on this point

then her “conviction did not ‘necessarily’ involve facts that

correspond to” a disqualifying offense. Moncrieffe, 569 U.S.

at 194–95 (emphasis added). Thus, under the modified

categorical approach, it was error for the BIA to deem

Marinelarena ineligible to apply for cancellation because her

record of conviction is ambiguous.10

ambiguous, the noncitizen has not necessarily been convicted of a

disqualifying offense. Moncrieffe, 569 U.S. at 197–98.

10

The dissent argues that our ruling will incentivize petitioners to

conceal their convictions. Dissent Op. 32, 56. This is a red herring and

any danger is vastly overblown. In practice, the government always

investigates and determines whether a noncitizen has convictions that may

be grounds for removal or bars to relief. See, e.g., 8 C.F.R. § 1003.47(c),

(d) (requiring noncitizens to file identifying documentation and provide

biometrics); id. § 1003.47(e) (requiring DHS to “initiate all relevant

identity, law enforcement, or security investigations or examinations

concerning the alien or beneficiaries promptly . . . . and to advise the

immigration judge of the results in a timely manner”). The only relevant

documents—Shepard documents—are public records, which a private

citizen or noncitizen could not possibly destroy. And they would be

nearly impossible for a noncitizen to conceal. And assuming the

documents exist, the government is well, and better, placed to obtain them.

See Immigrant Defense Project Amicus Br. at 18–24. The likelihood that

a petitioner would obtain relief because the government cannot locate an

existing document because the petitioner actively conceals it is therefore

so low as to be nonexistent.

But more importantly, even if a noncitizen is not barred from relief

because of a disqualifying conviction, the decision whether to then grant

the noncitizen relief is still discretionary. Obfuscation or concealment by

a noncitizen could and likely would be considered by an IJ to be grounds

to deny that discretionary relief. See Moncrieffe, 569 U.S. at 204.

Noncitizens therefore have an overarching incentive to comply with the

government’s procedures.

30 MARINELARENA V. SESSIONS

The BIA did not address, however, the question of

whether all the relevant Shepard documents had been

produced. Neither the government nor Marinelarena

provided the plea agreement or plea colloquy. Because this

appeal was focused on whether, when Shepard documents are

inconclusive, an ambiguous record necessarily qualifies as a

federal offense, not whether Marinelarena or the government

failed to produce all required Shepard documents, we do not

reach the issue of which party bears the burden of production

nor the issue of when that burden is satisfied. We thus

remand to the BIA to consider in the first instance the

placement and scope of the burden of production for Shepard

documents as it applies in cancellation of removal.11 See INS

v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (holding that,

where the BIA has not yet considered an issue, courts should

remand to allow the BIA to consider the issue in the first

instance).

11

The dissent argues that we err in remanding to the BIA because, the

dissent contends, the law is clear that the burden of production is on the

petitioner. See Dissent Op. 36–37, 37 n.4. Although we express no

opinion as to the applicable burden of production, the question or answer

as to which party bears it is not as cut-and-dried as the dissent suggests.

See 8 C.F.R. § 1240.8(d) (“If the evidence indicates that one or more of

the grounds for mandatory denial of the application for relief may apply,

the alien shall have the burden of proving by a preponderance of the

evidence that such grounds do not apply.” (emphasis added)). Compare

Pet. Suppl. En Banc Br. at 22–26 (arguing the burden of production is not

on the petitioner), with Resp. Suppl. En Banc Br. at 15–20 (arguing the

reverse). Moreover, as the discussion in footnote 10, supra, of the

carefully laid out procedures in 8 C.F.R. § 1003.47 indicates, the

government appears to be well positioned to address this burden. In any

event, the government counsels us that “[t]his argument was never

presented to the agency, however, and thus is not properly before the

court,” Resp. Suppl. En Banc Br. at 15, and we agree.

MARINELARENA V. SESSIONS 31

II. Expungement

Because we hold that on the present record

Marinelarena’s conviction is not a controlled substance

offense that would bar her from cancellation of removal, we

need not and do not reach the issue of expungement.

CONCLUSION

The record of Marinelarena’s conviction is ambiguous as

to whether she was convicted of conspiring to sell and

transport a controlled substance as defined under federal law.

Therefore, because the record of conviction did not show that

Marinelarena’s state-law conviction was “necessarily” for an

offense corresponding to a federal controlled substance

offense, she is not barred from relief under 8 U.S.C.

§ 1229b(b).

• ! •

Accordingly, the petition for review is GRANTED, the

BIA’s decision is REVERSED, and the matter is

REMANDED to the agency for further proceedings

consistent with this opinion.

32 MARINELARENA V. SESSIONS

IKUTA, Circuit Judge, with whom GRABER and

RAWLINSON, Circuit Judges, join, dissenting:

The majority today creates a new rule that, when an alien

has a prior conviction under a state statute that includes

“multiple, alternative versions of the crime,” Descamps v.

United States, 570 U.S. 254, 262 (2013), and there is

insufficient evidence in the record to prove which of those

alternative versions the alien was convicted of, we must

assume as a matter of law that the alien’s conviction does not

disqualify the alien from receiving immigration relief.

Because this new rule is invented out of whole cloth, will

give aliens a perverse incentive to withhold and conceal

evidence, and is contrary to the Immigration and

Naturalization Act (INA) and Supreme Court decisions, I

dissent.

I

The Department of Homeland Security (DHS) determined

that Aracely Marinelarena was removable as an alien who

had remained in the United States longer than permitted, in

violation of 8 U.S.C. § 1227(a)(1)(B). Therefore, the DHS

initiated removal proceedings by issuing a Notice to Appear.

Marinelarena conceded that she is removable. She then

sought relief from removal by submitting an application for

cancellation of removal.

In her application for cancellation of removal,

Marinelarena stated: “Convicted 12/28/2006, Charges,

Conspiracy to commit a crime, sale, transportation or offer to

sell controlled substances, Sentence, three months in a State

MARINELARENA V. SESSIONS 33

prison. This sentence is subject to a Motion.”1 Marinelarena

also submitted a two-count criminal complaint filed against

her in 2006. Count 1 charged her with conspiracy to sell and

transport a controlled substance, in violation of California

Penal Code section 182(a)(1) (Conspiracy) and California

Health and Safety Code section 11352 (Offense Involving

Controlled Substances Formerly Classified as Narcotics). In

connection with this conspiracy charge, the indictment

alleged sixteen overt acts, one of which referred to

transportation of three bags containing heroin. Count 2

charged her with the sale, transport, or offer to sell a

controlled substance (heroin), in violation of California

Health and Safety Code section 11352. Marinelarena also

submitted documents filed with the state trial court in support

of her motion for dismissal under California Penal Code

section 1203.4, including an affidavit in which she declared

that she pleaded guilty only to Count 1.

Over the next two years, Marinelarena appeared with

counsel before the immigration judge (IJ) at four different

hearings. At the first hearing in 2009, Marinelarena’s counsel

acknowledged that Marinelarena had a conviction relating to

transportation of narcotic substances. Given the

government’s contention that such a conviction would

disqualify Marinelarena from cancellation of removal, the IJ

asked Marinelarena’s counsel for further information and

briefing on the issue. At a 2011 hearing, the IJ reiterated his

1

The “motion” referred to in the application is a motion filed under

section 1203.4 of the California Penal Code to dismiss Marinelarena’s

conspiracy conviction. Although her state conviction was dismissed under

section 1203.4 on April 15, 2009, this dismissal has no effect on

removability. See Reyes v. Lynch, 834 F.3d 1104, 1107–08 (9th Cir.

2016) (holding that a “conviction” under the INA includes state

convictions that have been expunged on rehabilitative grounds).

34 MARINELARENA V. SESSIONS

request for briefing and documentation regarding the

conviction.

At the final hearing in 2012, Marinelarena’s counsel

acknowledged that she still could not produce additional

documentation regarding Marinelarena’s conviction for

conspiracy to distribute narcotics. The IJ pretermitted

Marinelarena’s application for cancellation of removal, but

informed her counsel that if Marinelarena could obtain

evidence that the conviction was not a controlled substance

violation, she could move to reopen the proceedings and

submit that evidence.

In his oral ruling, the IJ held that because Marinelarena

had failed to produce documents showing that her state

conviction was not for a disqualifying controlled substance

offense, she failed to prove that she was eligible for

cancellation of removal. Among other reasons, the IJ held

that a conviction for conspiracy to distribute heroin made her

ineligible for cancellation pursuant to § 1227(a)(2)(B).

On appeal to the Board of Immigration Appeals (BIA),

Marinelarena argued that the IJ erred in determining that her

prior state conviction was for a disqualifying offense. The

BIA affirmed. It stated that Marinelarena had the burden of

establishing eligibility for cancellation of removal.

According to the BIA, Marinelarena conceded that she had

been convicted of conspiracy to violate section 11352 of the

California Health and Safety Code and at least some ways of

committing that offense were disqualifying controlled

substance offenses. Marinelarena had the burden of proving

she had not been convicted of a disqualifying controlled

substance offense, and had not carried that burden because

she “had not submitted any evidence establishing that her

MARINELARENA V. SESSIONS 35

conspiracy conviction was not for a disqualifying controlled

substance offense.” Therefore, the BIA held, Marinelarena

was not eligible for cancellation of removal.

II

Congress decreed that “[a]n alien applying for relief or

protection from removal has the burden of proof.” 8 U.S.C.

§ 1229a(c)(4)(A); see also 8 C.F.R. § 1240.8(d) (providing

that the alien “shall have the burden of establishing that he or

she is eligible for any requested benefit or privilege”).2 To

demonstrate eligibility for cancellation of removal (the

benefit that Marinelarena seeks) the alien must show that the

alien “has not been convicted of any aggravated felony.”

8 U.S.C. § 1229b(a)(3). And if the evidence suggests that a

ground “for mandatory denial of the application for relief may

apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not

apply.” 8 C.F.R. § 1240.8(d) (emphases added); cf. Nguyen

v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018) (“[W]hen a

noncitizen is placed in removal proceedings, the burden of

proof shifts depending on whether he is subject to

inadmissibility or removability. An ‘applicant for admission’

2

Congress has taken great care in allocating the burden of proof in

various immigration contexts. For instance, Congress provided in

8 U.S.C. § 1229a(c)(2) that “the alien has the burden of establishing”

either (a) entitlement to admission “clearly and beyond doubt” and the

absence of a reason for inadmissibility or (b) “by clear and convincing

evidence,” lawful presence in the United States pursuant to an earlier

admission. Under 8 U.S.C. § 1229a(c)(3)(A), by contrast, the government

“has the burden of establishing by clear and convincing evidence” the

deportability of an alien who has been lawfully admitted to the United

States.

36 MARINELARENA V. SESSIONS

bears the burden of proving he is not inadmissible under

8 U.S.C. § 1182 . . . .”).

The alien’s burden of proof incorporates the burden of

persuasion. See Schaffer ex rel. Schaffer v. Weast, 546 U.S.

49, 57 (2005) (holding that this is the default rule); cf.

8 U.S.C. § 1229a(c)(4)(B) (in considering an application for

relief from removal, an immigration judge will determine,

among other things, whether the testimony is persuasive, and

sufficient to demonstrate that the alien has satisfied the

alien’s burden of proof). The burden of persuasion

determines which party loses if the record is inconclusive.

See Medtronic, Inc. v. Mirowski Family Ventures, LLC,

571 U.S. 191, 198–200 (2014); see also Overman v. Loesser,

205 F.2d 521, 523 (9th Cir. 1953) (holding that the party who

bears the burden runs “the risk of non-persuasion”). As the

Supreme Court has expressed it, “if the evidence is evenly

balanced, the party that bears the burden of persuasion must

lose.” Dir., Office of Workers’ Comp. Programs v.

Greenwich Collieries, 512 U.S. 267, 272 (1994).

The alien’s burden of proof also incorporates the burden

of production. In order to show eligibility for relief under the

INA, “[t]he applicant must comply with the applicable

requirements to submit information or documentation in

support of the applicant’s application for relief or protection

as provided by law or by regulation or in the instructions for

the application form.” 8 U.S.C. § 1229a(c)(4)(B). An alien

applying for cancellation of removal must complete Form

EOIR-42B, which requires the applicant to answer the

questions within the form “fully and accurately,” including

answering whether the alien has been “convicted . . . for an

MARINELARENA V. SESSIONS 37

act involving a felony.” EOIR-42B.3 If the alien answers

affirmatively, EOIR-42B states that the alien is “required to

submit documentation of any such occurrences.” Id.4

Because Congress placed the burden of proof on the alien

to establish eligibility for cancellation of removal, aliens

seeking relief from removal must show that they were not

convicted of a state offense that would disqualify them from

cancellation of removal, 8 U.S.C. § 1229b(b)(1)(C), and will

lose if they cannot do so because the record is inconclusive.

The majority of our sister circuits agree with this principle.

Most recently, the Eighth Circuit addressed this issue in

Pereida v. Barr, 916 F.3d 1128 (8th Cir. 2019), and held that

where the modified categorical approach applies because a

state offense is divisible, and the available documents provide

“no indication of the subsection of the statute under which

[the alien] was convicted,” the alien failed to carry his burden

of proving eligibility for discretionary relief, id. at 1132–33.

In reaching this conclusion, Pereida relied on the Third and

Tenth Circuits, as well as on its own Eighth Circuit precedent,

for the principle that “an inconclusive record is insufficient to

satisfy a noncitizen’s burden of proving eligibility for

discretionary relief.” Id. at 1133.5 The Fourth, Sixth, and

3

https://www.justice.gov/sites/default/files/pages/attachments/

2015/07/24/eoir42b.pdf.

4

Because the statute makes clear that an alien seeking relief from

removal bears the burden of production, 8 U.S.C. § 1229a(c)(4), 8 C.F.R.

§ 1240.8(d), the majority errs in remanding this matter to the BIA to

determine who has the burden of producing Shepard documents in a

cancellation of removal hearing. Maj. Op. 30.

5

See, e.g., Syblis v. Att’y Gen. of U.S., 763 F.3d 348, 357 (3d Cir.

2014) (“[A]n inconclusive record of conviction does not satisfy [an

alien’s] burden of demonstrating eligibility for relief from removal.”);

38 MARINELARENA V. SESSIONS

Seventh Circuits also expound this rule.6 Only the First

Circuit has rejected this approach. Sauceda v. Lynch,

819 F.3d 526, 533–34 (1st Cir. 2016).7

In sum, this case raises a single question of law: When an

alien seeks cancellation of removal and it is unclear from the

record whether the alien has a disqualifying criminal

conviction, does the alien win or lose? The majority opinion

ignores the congressional command in the controlling statute

concerning allocation of the burden of proof in that

Lucio-Rayos v. Sessions, 875 F.3d 573, 583–84 (10th Cir. 2017) (holding

that the alien bears the burden of proving that a prior conviction was not

a crime involving moral turpitude, which would make the alien ineligible

for cancellation of removal), cert. denied sub. nom. Lucio-Rayos v.

Whitaker, 139 S. Ct. 865 (2019).

6

See, e.g., Salem v. Holder, 647 F.3d 111, 116–20 (4th Cir. 2011)

(“Presentation of an inconclusive record of conviction is insufficient to

meet an alien’s burden of demonstrating eligibility . . . .”); Gutierrez v.

Sessions, 887 F.3d 770, 779 (6th Cir. 2018) (“[W]here a petitioner for

relief under the INA was convicted under an overbroad and divisible

statute, and the record of conviction is inconclusive as to whether the state

offense matched the generic definition of a federal statute, the petitioner

fails to meet her burden.”), cert. denied sub nom. Gutierrez v. Whitaker,

139 S. Ct. 863 (2019); Sanchez v. Holder, 757 F.3d 712, 720 n.6 (7th Cir.

2014) (agreeing with the Fourth and Tenth Circuit that “if the analysis has

run its course and the answer is still unclear, the alien loses by default”).

The majority quibbles that some of these opinions merely “nodded” to this

issue, Maj. Op. 18 n.6, but other circuits likewise read the Third, Fourth,

Fifth, Seventh, and Tenth Circuits as rejecting the majority’s side of the

circuit split. See, e.g., Francisco v. U.S. Att’y Gen., 884 F.3d 1120, 1134

n.37 (11th Cir. 2018).

7

While the majority also points to the Second Circuit’s opinion in

Martinez v. Mukasey, Maj. Op. 17 n. 6, that case is inapposite, because it

did not consider or apply the modified categorical approach. See 551 F.3d

113, 118 n.4 (2d Cir. 2008).

MARINELARENA V. SESSIONS 39

circumstance by misreading Moncrieffe v. Holder, 569 U.S.

184 (2013), and by conflating a threshold question of fact

(does the record demonstrate clearly that the alien does or

does not have a disqualifying criminal conviction?) with the

resulting question of law.

III

To determine Marinelarena’s eligibility for cancellation

of removal, we must consider two different legal frameworks:

the Supreme Court’s categorical approach for determining

whether the elements of a prior state offense are the same as

or narrower than those of the disqualifying federal offense,

and the INA’s statutory and regulatory framework for

determining whether an alien qualifies for relief from

removal.

A

The categorical approach is a procedure for determining

whether the “state offense is comparable to an offense listed

in the INA.” Moncrieffe, 569 U.S. at 190. “Under this

approach we look ‘not to the facts of the particular prior

case,’ but instead to whether ‘the state statute defining the

crime of conviction’ categorically fits within the ‘generic’

federal definition of a corresponding aggravated felony.” Id.

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186

(2007)). Here, the federal aggravated felony is defined to

include a “controlled substance offense,” meaning a violation

40 MARINELARENA V. SESSIONS

of any law relating to a controlled substance, as listed on one

of several federal drug lists.8

To determine whether Marinelarena was convicted of a

state offense that qualifies as a federal controlled substance

offense, we begin by looking at the state statute as a whole.

If the state statute criminalizes the same or less conduct than

the federal controlled substance offense, then the conviction

is a categorical match to the disqualifying federal offense.

Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If the

state statute criminalizes more conduct than the federal

controlled substance offense, then the state statute is not a

categorical match. Id. As the Supreme Court has

emphasized, this is a legal question. Mellouli v. Lynch,

135 S. Ct. 1980, 1987 (2015).

Marinelarena was convicted of violating section 182(a)(1)

of the California Penal Code and section 11352 of the

California Health and Safety Code. Section 182(a)(1)

criminalizes conspiring “[t]o commit any crime.” Cal. Penal

Code § 182(a)(1). This statute criminalizes more conduct

than the federal controlled substances offense, because

“conspiracy” applies to any criminal conspiracy, whether or

not it relates to a controlled substance offense. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(II); id. § 1227(a)(2)(B)(i). We have

previously determined that section 11352 of the California

8

More specifically, a federal controlled substance offense includes

the elements of violating (or conspiring to violate) a law relating to a

controlled substance, defined in the Controlled Substances Act (CSA),

21 U.S.C. § 802(6), to mean “a drug or other substance, or immediate

precursor, included in” one of several federal lists of drugs. A conviction

for a state offense that is a categorical match to a federal controlled

substance offense would make Marinelarena ineligible for cancellation of

removal. See 8 U.S.C. § 1182(a)(2)(A)(i)(II); id. § 1227(a)(2)(B)(i).

MARINELARENA V. SESSIONS 41

Health and Safety Code “criminalizes a broader range of

activity and a greater variety of controlled substances than

does federal law,”9 and therefore is not a categorical match

for the federal controlled substance offense. United States v.

Martinez-Lopez, 864 F.3d 1034, 1037–38 (9th Cir. 2017) (en

banc), cert. denied, 138 S. Ct. 523 (2017). Accordingly,

neither statute, taken as a whole, is a categorical match for the

generic federal controlled substance offense.

This conclusion does not the end the inquiry, however,

because a state criminal statute may include multiple,

alternative versions of the crime. Nijhawan v. Holder,

557 U.S. 29, 35 (2009); see also Moncrieffe, 569 U.S. at 191

(stating that “our cases have addressed state statutes that

contain several different crimes, each described separately”).

A state statute that includes such multiple, alternative

versions of the crime is referred to as “divisible.” Descamps,

570 U.S. at 257.

Both state statutes at issue here are divisible. Under

section 182, a defendant cannot be convicted for conspiring

to commit a crime generally, but only of conspiring to

commit a specific state offense. People v. Horn, 12 Cal. 3d

290, 297 (1974); see People v. Beardslee, 53 Cal. 3d 68, 92

(1991) (explaining that if there are several acts on which

separate criminal offenses could be found, the jury must agree

on the act forming the basis for the conviction). The jury

must agree unanimously on the offense that was the object of

9

Section 11352 of the California Health and Safety Code provides

that “every person who transports [for sale], imports into this state, sells,

furnishes, administers, or gives away, or offers to transport, import into

this state, sell, furnish, administer, or give away, or attempts to import into

this state or transport [various listed controlled substances] . . . shall be

punished by imprisonment.”

42 MARINELARENA V. SESSIONS

the conspiracy. Id. Section 11352 is likewise divisible. A

jury must agree unanimously on the activity involved and the

controlled substance at issue. See Martinez-Lopez, 864 F.3d

at 1042–43. Each activity and each controlled substance

constitutes a separate crime. Id. at 1043. The jury must agree

unanimously on whether the defendant sold a controlled

substance or transported it for sale and must also agree

unanimously on the specific controlled substance. See id.

Some of the alternative versions of the offense

criminalized by section 11352 match the federal controlled

substance offense in this case. But some of the versions, such

as transporting apomorphine for sale, are not categorical

matches to the federal generic offense.10 When, as here, a

state statute is divisible, and only some of the alternative

versions of the offense are categorical matches to the federal

generic offense, a court may consider certain types of

evidence to determine which version of the offense the alien

was actually convicted of. This step in the procedure is

sometimes referred to as the modified categorical approach.

10

For instance, selling heroin, one version of the offense criminalized

by section 11352, is a categorical match to a federal controlled substance

offense. See Mielewczyk v. Holder, 575 F.3d 992, 996 (9th Cir. 2009)

(holding that a conviction for the transportation of heroin “under

California Health and Safety Code section 11352(a) is a ‘violation of . . .

[a] law or regulation of a State . . . relating to a controlled substance (as

defined in section 802 of Title 21)’”). But transporting apomorphine for

sale is not. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.

2007) (“[T]he possession of apomorphine is specifically excluded from

Schedule II of the CSA, but California’s Schedule II specifically includes

it.” (citation omitted)), abrogation recognized by Villavicencio v. Sessions,

904 F.3d 658, 665 (9th Cir. 2018); compare Cal. Health & Safety Code

§ 11055(b)(1)(G) (2002) (classifying apomorphine as a Schedule II drug),

with 21 U.S.C. § 802(6), and 21 C.F.R. §§ 1308.11–.15 (excluding

apomorphine as a federally proscribed substance).

MARINELARENA V. SESSIONS 43

Descamps, 570 U.S. at 257. It involves two distinct inquiries,

one factual and one legal.

First, as a factual matter, the court must consider “a

limited class of documents [from the record of a prior

conviction] to determine what crime, with what elements, a

defendant was convicted of.” Mathis, 136 S. Ct. at 2249

(citing Shepard v. United States, 544 U.S. 13, 26 (2005)). Of

course, the crime that a defendant was convicted of is a

matter of historical fact. The documents a court may consider

in applying the modified categorical approach include the

“charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” Shepard, 544 U.S.

at 16; see also Moncrieffe, 569 U.S. at 190–91. The court

must examine these documents to establish which alternative

version of the state offense the alien was convicted of.11

11

The majority opinion makes a critical error at this first step, see

Maj. Op. 23, by failing to distinguish between “the fact that the defendant

had been convicted of crimes falling within certain categories,” which a

court may consider, with the “facts underlying the prior convictions,”

which a court may not consider. Taylor v. United States, 495 U.S. 575,

600–01 (1990) (emphasis added). According to the majority opinion,

“[w]hat the [Shepard] documents show is . . . a purely legal question”

because the Shepard documents “either show that the petitioner was

convicted of a disqualifying offense under the categorical approach, or

they do not.” Maj. Op. 23. But obviously, it is a matter of historical fact

whether the petitioner was convicted of a specific offense; it is not a

purely legal question like the meaning of a statute. And indeed, we often

consider the facts in the record to determine the petitioner’s actual crime

of conviction. We may piece together the clues in the Shepard

documents, such as putting the defendant’s plea to Count 1 (as reported in

the minute order) together with the description of Count 1 set out in the

indictment, in order to determine the offense of conviction. See Ruiz-

Vidal v. Lynch, 803 F.3d 1049, 1052–55 (9th Cir. 2015). Similarly, “when

a defendant references a specific count during his plea colloquy,” a court

44 MARINELARENA V. SESSIONS

If the court can determine the version of the offense, the

court then proceeds to the legal inquiry. The court

“compare[s] that crime, as the categorical approach

commands, with the relevant generic offense” to determine

whether they are a categorical match. Mathis, 136 S. Ct. at

2249. This second step of the modified categorical approach

is identical to the above-described categorical approach: it is

a purely legal inquiry that consists of comparing the

applicable version of the state offense to the federal generic

offense. See id. As in the categorical approach, a court does

not consider the alien’s underlying conduct. Taylor v. United

States, 495 U.S. 575, 600 (1990) (“Congress intended the

sentencing court to look only to the fact that the defendant

had been convicted of crimes falling within certain

categories, and not to the facts underlying the prior

convictions.”). The question is not what the alien actually

did, but under which provision of the state statute the alien

was convicted.12

“can also consider the drug listed in the charging document” to determine

the offense of conviction. Id.; see also United States v. Valdavinos-

Torres, 704 F.3d 679, 687–88 (9th Cir. 2012).

12

The majority holds that, because “[t]he modified categorical

approach is merely a ‘version of [the categorical] approach,’” Maj. Op.

22 (quoting Mellouli, 135 S. Ct. at 1986 n.4), and has been described by

the Court as “a tool for implementing the categorical approach,” Maj. Op.

24 (emphasis omitted) (quoting Descamps, 570 U.S. at 262), the modified

categorical approach is a “legal query [that] requires no factual finding

and is therefore unaffected by statutory ‘burdens of proof.’” Maj. Op. 21.

The majority is correct that, at the second step of the categorical approach,

the inquiry is purely legal. Its mistake, however, is holding that the first

step of the modified categorical approach, in which a court “examine[s]

a limited class of documents to determine which of a statute’s alternative

elements formed the basis of the defendant’s prior conviction,” Maj. Op.

MARINELARENA V. SESSIONS 45

Here, both sections 182(a)(1) and 11352 include multiple,

alternative versions of a crime, some of which match the

federal controlled substance offense and some of which do

not. This means that a court must consider the judicially

noticeable documents in the record to answer the historical,

factual question: which alternative version of the state

offense was Marinelarena convicted of?

The only judicially noticeable document in the record is

the criminal complaint charging Marinelarena with

(1) conspiracy to sell and transport a controlled substance and

(2) selling, transporting, or offering to sell heroin. However,

a criminal complaint, without more, is insufficient to

establish which state crime a defendant was convicted of. See

United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007)

(en banc) (holding that the complaint in that case “fails to

establish the factual predicate for [the defendant’s] plea of

guilty”). Despite numerous opportunities to do so,

Marinelarena failed to produce any document of conviction

that could establish which alternative version of the offense

she was convicted of. Here, because the record includes only

the criminal complaint, the judicially noticeable documents

do not allow a court to make the historical, factual

determination as to which version Marinelarena was

convicted of.

So where does that leave us? Simply said, we have

reached the end of the categorical analysis. Because we don’t

know the applicable version of the state offense, we cannot

compare it with the federal controlled substance offense to

24 (quoting Descamps, 570 U.S. at 262), is also a pure question of law and

can be conducted without reference to historical, factual records of

conviction.

46 MARINELARENA V. SESSIONS

determine whether they match. Therefore, we cannot

determine whether Marinelarena’s prior conviction was for a

disqualifying or nondisqualifying offense. And contrary to

the majority’s view, we may not assume the answer to this

factual question; there is no statutory or precedential basis for

giving a legal answer to the factual question of what offense

Marinelarena was actually convicted of.

B

While this ends our application of the categorical

approach, it does not end the analysis. Rather, it is necessary

to consider how this conclusion fits within the legal

framework of the INA.

Under the INA, “[i]f the evidence indicates that one or

more of the grounds for mandatory denial of the application

for relief may apply, the alien shall have the burden of

proving by a preponderance of the evidence that such grounds

do not apply.” 8 C.F.R. § 1240.8(d) (emphasis added).

Although there are many alternative versions of the offense

proscribed by section 11352, the record does not show which

version Marinelarena was convicted of. Though

Marinelarena could have been convicted of a state offense

that did not disqualify her from relief, the IJ’s determination

that “one or more of the grounds for mandatory denial of the

application for relief may apply,” id. (emphasis added), was

supported by substantial evidence. In short, because

Marinelarena bears the burden of proof, and the record is

inconclusive, she must lose. Greenwich Collieries, 512 U.S.

at 272; see also Lucio-Rayos, 875 F.3d at 581. Thus, the BIA

did not err in holding that Marinelarena failed to prove her

eligibility for cancellation of removal.

MARINELARENA V. SESSIONS 47

We considered a similar situation in Young v. Holder,

where the alien “pleaded guilty to a conjunctively phrased

indictment that alleged several theories of the crime, any one

of which would have sustained a state conviction, but only

some of which would constitute an aggravated felony” that

would disqualify the alien from being eligible for cancellation

of removal. 697 F.3d 976, 988 (9th Cir. 2012) (en banc).

Because we could not “tell from the record of conviction

whether [the alien] was convicted of selling cocaine, which

is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), or

merely of solicitation, which is not, [the alien’s] record of

conviction is inconclusive.” Id. Because the record was

inconclusive, we held that the alien had not carried his burden

of demonstrating eligibility for cancellation of removal. Id.

at 989. Young was correctly decided, and it applies here. 13

IV

The majority relies almost exclusively on Moncrieffe in

holding that, contrary to Young, we must conclude as a matter

13

Pereida adopted an identical approach. See Pereida, 916 F.3d

1128. In Pereida, the Eighth Circuit considered whether an alien’s

conviction under a Nebraska statute constituted a crime involving moral

turpitude. The court first determined that the Nebraska statute was not

categorically a crime involving moral turpitude, because one of the

alternative offenses criminalized by the statute did not involve fraud or

deception. Id. at 1132. But, the Eighth Circuit explained, “[b]ecause this

statute is divisible, the inquiry does not end here.” Id. Applying the

modified categorical approach, the Eighth Circuit noted that the available

documents provided “no indication of the subsection of the statute under

which [the alien] was convicted.” Id. Because of the court’s “inability to

discern the particular crime for which [the alien] was convicted” from the

alien’s inconclusive record, id. at 1133, the Eighth Circuit held that the

alien had not carried his burden to establish eligibility for cancellation of

removal, and therefore denied the petition for relief.

48 MARINELARENA V. SESSIONS

of law that when the evidence does not conclusively establish

which alternative version of the state offense Marinelarena

was convicted of, we must assume that the alien’s conviction

does not disqualify the alien from receiving immigration

relief. This reliance is misplaced, however, because

Moncrieffe was decided on the ground that the state offense

was not a categorical match to a federal offense; in

Moncrieffe, there was no question about which state offense

the alien was convicted of. Indeed, Moncrieffe did not

involve any use of the modified categorical approach. Thus,

Moncrieffe did not address the situation in Young, let alone

overrule it.

A

In Moncrieffe, the alien had been convicted under a

Georgia statute for possession of marijuana with intent to

distribute. 569 U.S. at 188–89 n.2. The question in that case

was whether this state offense matched the federal generic

offense of “drug trafficking crime,” which was defined as

possession of more than a small amount of marijuana with

intent to distribute it for remuneration. Id.14

14

Specifically, Moncrieffe considered whether the alien had been

convicted of an aggravated felony, which includes “a drug trafficking

crime” as defined in 18 U.S.C. § 924(c). 569 U.S. at 188. Under

§ 924(c), a “drug trafficking crime” includes “any felony punishable under

the Controlled Substances Act”; whereas a “felony” is an offense for

which the “maximum term of imprisonment authorized” is “more than one

year,” see 18 U.S.C. § 3559(a)(5). In Moncrieffe, the relevant federal

generic drug trafficking crime was the federal crime to “possess with

intent to . . . distribute . . . a controlled substance,” 21 U.S.C. § 841(a)(1),

one of which is marijuana, see id. § 812(c). Not every violation of

§ 841(a) was a drug trafficking crime, however, because § 841(a)(1) was

punishable as a misdemeanor if a person violated the statute “by

distributing a small amount of marihuana for no remuneration.”

MARINELARENA V. SESSIONS 49

The state crime of conviction in Moncrieffe made it a

crime to “possess, have under [one’s] control, manufacture,

deliver, distribute, dispense, administer, purchase, sell, or

possess with intent to distribute marijuana.” Ga. Code Ann.

§ 16-13-30(j)(1); Moncrieffe, 569 U.S. at 192. Taken as a

whole, the statute was not a categorical match for the federal

drug trafficking crime, because it was possible to be

convicted for possessing a small amount of marijuana for no

remuneration. Moncrieffe, 569 U.S. at 192–94.

Nor was the state statute divisible in a relevant way.

While the state statute listed different acts, it did not create

separate versions of the offense based on the amount of

marijuana or whether the distribution of marijuana was for

remuneration. See id. at 194 (noting that the “fact of a

conviction for possession with intent to distribute marijuana,

standing alone, does not reveal whether either remuneration

or more than a small amount of marijuana was involved”).

Because the state statute was not divisible, and it

criminalized conduct that under federal law “could

correspond to either the CSA felony or the CSA

misdemeanor,” a conviction under that statute “did not

‘necessarily’ involve facts that correspond to an offense

punishable as a felony under the CSA.” Id. at 194–95.

Accordingly, the state statute was overbroad, and “[u]nder the

categorical approach,” the alien “was not convicted of an

aggravated felony.” Id. at 195.

Moncrieffe, 569 U.S. at 193–94. Accordingly, Moncrieffe determined that

the relevant federal drug trafficking crime in that case was possession with

intent to distribute marijuana, involving more than “a small amount for no

remuneration.” Id.

50 MARINELARENA V. SESSIONS

Unlike our case, the record in Moncrieffe established the

exact state offense the alien was convicted of. Because the

Court did not need to consider which alternative version of

the offense the alien was convicted of, it did not address the

issue here: what to do when it is not clear what version of the

state offense the alien was convicted of. Therefore,

Moncrieffe does not control the analysis in our case.15

B

A brief digression is necessary here to address a passage

and a footnote in Moncrieffe which have been the source of

great confusion and error. In the section of the opinion

addressing the categorical approach generally, Moncrieffe

notes:

This categorical approach has a long pedigree

in our Nation’s immigration law. See Das,

The Immigration Penalties of Criminal

Convictions: Resurrecting Categorical

Analysis in Immigration Law, 86 N.Y.U.L.

Rev. 1669, 1688–1702, 1749–1752 (2011)

(tracing judicial decisions back to 1913). The

reason is that the INA asks what offense the

15

The majority argues that Moncrieffe controls this analysis because

the categorical and modified categorical approach address the same legal

issue, Maj. Op. 24, whether the crime the alien was convicted of matches

the generic federal offense (rather than whether the alien committed such

a crime). This is correct at step two of the modified categorical

approach—but only after the court has completed step one, and identified

the version of the state offense the alien was convicted of. And

Moncrieffe has nothing to say about how courts should identify the

relevant version of the state offense of conviction when the record of

conviction is ambiguous—the question presented in this case.

MARINELARENA V. SESSIONS 51

noncitizen was “convicted” of, 8 U.S.C.

§ 1227(a)(2)(A)(iii), not what acts he

committed. “[C]onviction” is “the relevant

statutory hook.” Carachuri-Rosendo v.

Holder, 560 U.S. 563, 580 (2010); see United

States ex rel. Mylius v. Uhl, 210 F. 860, 862

(2d Cir. 1914).

569 U.S. at 191. In light of the context and citations, it is

clear that this section merely reenforces the applicability of

the categorical approach in the immigration context. Das

recounts the deep roots of the categorical approach in

immigration law to show that “[t]he basic structure of the

immigration statute—predicating certain immigration

penalties on convictions—has remained unchanged since

courts first articulated categorical analysis in the early

twentieth century.” Alina Das, The Immigration Penalties of

Criminal Convictions: Resurrecting Categorical Analysis in

Immigration Law, 86 N.Y.U.L. Rev. 1669, 1701 (2011). In

enacting the modern day Immigration and Nationality Act,

Das argues, “Congress intended a categorical analysis to

apply wherever it predicated immigration penalties on

convictions.” Id. at 1698. Citing Das’s historical overview,

Moncrieffe stated that “[t]he reason [why the categorical

approach is applied ‘in our Nation’s immigration law’] is that

the INA asks what offense the noncitizen was ‘convicted’ of,

8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he committed.

‘[C]onviction’ is ‘the relevant statutory hook.’” 569 U.S. at

191 (quoting Carachuri-Rosendo, 560 U.S. at 580).16 But

16

The majority opinion reiterates at great length Das’s point that

“immigration adjudicators may not go behind the judgment and record of

conviction to assess the facts and circumstances of a noncitizen’s

particular offense,” Das, supra, at 1696. Maj. Op. 25–27 n.8. This

52 MARINELARENA V. SESSIONS

neither Das’s article, nor Moncrieffe’s reaffirmation of the

categorical approach, addresses who bears the burden of

proving the nature of the relevant conviction.

In the footnote immediately after this passage, Moncrieffe

explains its citation to Carachuri-Rosendo by stating that the

case “construed a different provision of the INA that concerns

cancellation of removal, which also requires determining

whether the noncitizen has been ‘convicted of any aggravated

felony.’ 8 U.S.C. § 1229b(a)(3) (emphasis added). Our

analysis is the same in both contexts.” Id. at 191 n.4. In

context, the footnote explains why the cite to Carachuri-

Rosendo (which involved cancellation of removal) is on

point: because the categorical approach applies the same way

in removal and relief-from-removal contexts, Carachuri-

Rosendo supports Moncrieffe’s point that the categorical

approach applies in the immigration context when the

disposition of a petitioner’s case depends on the nature of a

prior conviction.

This interpretation is confirmed by a brief review of

Carachuri-Rosendo. In Carachuri-Rosendo, an alien had

committed two misdemeanor drug possession offenses in

Texas. 560 U.S. at 566. As in our case, the alien conceded

removability, but sought cancellation of removal. Id. The

question for the Court was whether the alien’s state crimes of

conviction constituted an “aggravated felony” for purposes of

immigration law, which would make him ineligible for

cancellation of removal. Id.

assertion, while correct, sheds no light on the question relevant here: who

bears the burden of proving what the petitioner was convicted of.

MARINELARENA V. SESSIONS 53

Carachuri-Rosendo applied a categorical approach to this

problem. It first determined that the federal generic offense

was simple possession of a controlled substance after a prior

conviction (i.e., “recidivist simple possession”) pursuant to

21 U.S.C. § 844(a), which was punishable as a felony. Id. at

567–68. Turning to the state crime of conviction, Carachuri-

Rosendo determined that the alien had been convicted of a

simple possession offense, not recidivist simple possession.

Id. at 570. Because the state offense of conviction was not a

categorical match to the federal generic offense, the

conviction did not preclude cancellation of removal. Id. The

Court rejected the government’s argument that the alien was

ineligible for cancellation of removal because the alien could

have been convicted in state court of recidivist simple

possession (due to a prior possession conviction). Id. As the

Court made clear, the INA requires courts to consider only

the conviction itself, not “what might have or could have

been charged.” Id. at 576.

Accordingly, Carachuri-Rosendo stands only for the

proposition that where the state offense of conviction does

not match the federal generic offense, the alien has not been

convicted of a disqualifying federal generic offense. It does

not address the question raised in this case, which is how to

determine which version of the state offense the alien was

actually convicted of. Moreover, there is no reason to think

Moncrieffe cited Carachuri-Rosendo to make a point about

the burden of proof in immigration cases, an issue raised

neither in Carachuri-Rosendo nor Moncrieffe. Moncrieffe’s

footnote 4 is best understood as merely further bolstering the

54 MARINELARENA V. SESSIONS

point that the categorical approach applies in immigration

cases.17

C

Moncrieffe does not address the situation we addressed in

Young, where the state statute of conviction was divisible, so

that some of the versions of the state offense categorically

qualified as a federal generic offense and others did not. In

that situation, a court may consider evidence in the record to

determine which version of the state crime the alien was

convicted of. This question of what offense the alien was

actually convicted of is a historical factual issue, not a legal

issue.

In holding otherwise, the majority confuses the

categorical approach in Moncrieffe with the historical factual

question of what state statute the alien was convicted of.

Thus, the majority states that Moncrieffe’s “mode of analysis

is clearly irreconcilable with Young,” Maj. Op. 19, because

Moncrieffe held that “[i]f the record does not conclusively

17

The majority interprets footnote 4 to mean that whenever there is

ambiguity regarding the nature of the state offense, that offense is deemed

not disqualifying, regardless whether the government is seeking removal

or the alien is seeking relief from removal. Otherwise, the majority

argues, there would be “an exceedingly odd result” because it is possible

that the government could not prove the alien was removable, while at the

same time the alien could not prove eligibility for asylum or cancellation

of removal. Maj. Op. 20. This “odd” result, however, is compelled by the

INA and its shifting burden of proof: the government bears the burden of

proving “by clear and convincing evidence that the respondent is

deportable as charged,” 8 C.F.R. § 1240.8(a), while the alien “shall have

the burden of establishing that he or she is eligible for any requested

benefit or privilege and that it should be granted in the exercise of

discretion,” id. at § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4).

MARINELARENA V. SESSIONS 55

establish that the noncitizen was convicted of the elements of

the generic offense, then she was not convicted of the offense

for purposes of the immigration statutes,” Maj. Op. 20. But

a reader will search in vain for any such ruling in Moncrieffe.

Moncrieffe merely applied the familiar rule that a court may

consider only the offense of conviction, not the facts

underlying the conviction, in determining whether an alien

was convicted of a disqualifying offense for purposes of the

immigration statutes. 569 U.S. at 205–06. Because in

Moncrieffe the alien was convicted of a state offense that was

not divisible, the Court had no occasion to address a case

where the record did not establish which version of a state

offense the alien was convicted of.

In short, the majority misreads Moncrieffe by confusing

a legal question (whether there is a categorical match) with a

factual question (what was the alien convicted of in state

court). When a state statute includes many alternative

versions of an offense, a court must determine the historical,

factual question of what the alien was convicted of based on

the evidence in the record. Only then can we ask the legal

question: whether that offense is a match for a disqualifying

federal offense.

V

By confusing the legal and factual issues, the majority

creates the new rule that, when an alien is convicted under a

state statute that includes multiple, alternative versions of the

offense, and there is insufficient evidence in the record to

prove what version the alien was convicted of, we must

assume as a matter of law that the alien was convicted of a

version of the state offense that does not match the federal

generic offense. This rule finds no support whatsoever in

56 MARINELARENA V. SESSIONS

Moncrieffe. The majority opinion’s rule is also directly

contrary to Young, which was not overruled by Moncrieffe

because Young and Moncrieffe address entirely distinct

issues. Moreover, the majority opinion conflicts with the

majority of our sister circuits, and instead joins the single

circuit that adopted the wrong approach. Most important, the

new rule is contrary to the INA in that it overrides the statute

and regulation putting the burden on the alien “to establish

that the alien . . . satisfies the applicable eligibility

requirements” for various forms of relief. 8 U.S.C.

§ 1229a(c)(4)(A). And because the INA imposes the burden

of production on the alien, 8 U.S.C. § 1229a(c)(4), 8 C.F.R.

§ 1240.8(d), the majority’s rule that the alien is entitled to

relief whenever the record is ambiguous will encourage aliens

to withhold and conceal evidence.18

Under the INA and our caselaw, if the state statute of

conviction is divisible, and the alien was convicted of a

specific alternative version of a state offense, then the alien

18

In this case, for instance, Marinelarena has declined to produce

additional Shepard documents (despite urgings by the IJ to do so). Nor

has she stated that her offense of conviction is not disqualifying. A fair

inference, therefore, is that she is relying on a strategic absence of

documentation to obtain immigration benefits. The majority provides no

support for its claim that in practice the government can find and produce

an alien’s convictions to avoid abuses of the immigration system, Maj.

Op. 29 n.10. In this very case, the government has been unable to produce

additional Shepard documents. Given the government’s backlog of over

5 million claims for immigration benefits, see U.S. Citizenship and

Immigration Servs., Response to Representative Garcia’s February 12,

2019 Letter at 3 (April 2019), and its systemic problems, see U.S.

Citizenship & Immigration Servs., Annual Report 2018 at 19 (June 28,

2018) (noting substantial obstacles in implementing its immigration

system database), enforcing the regulation’s burden of production is

critical for avoiding abuse and fraud.

MARINELARENA V. SESSIONS 57

seeking relief from removal has the burden of proving that the

conviction does not disqualify the alien from that relief.

Because the majority holds to the contrary, I dissent.