Young v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH CRISTOPHER YOUNG, aka 

Joseph Christopher Young,

No. 07-70949

Petitioner,

v.  Agency No.

A035-029-889

ERIC H. HOLDER JR., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

December 12, 2011—San Francisco, California

Filed September 17, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Betty B. Fletcher, Harry Pregerson, Andrew J. Kleinfeld,

Susan P. Graber, Raymond C. Fisher, Richard A. Paez,

Richard R. Clifton, Carlos T. Bea, and Sandra S. Ikuta,

Circuit Judges.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by

Judge B. Fletcher

Partial Concurrence and Partial Dissent by Judge Ikuta

11273

YOUNG v. HOLDER 11277

COUNSEL

Katherine Mayer Mangan, Mayer Mangan, APLC, San Diego,

California; Robert W. Perrin, Latham & Watkins LLP, Los

Angeles, California, for the petitioner.

Bryan S. Beier, Senior Litigation Counsel, United States

Department of Justice, Washington, D.C., for the respondent.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,

San Diego, California, for the amici curiae.

OPINION

GRABER, Circuit Judge:

Petitioner Joseph Young petitions for review of the Board

of Immigration Appeals’ (“BIA”) decision affirming a final

order of removability. The BIA held that Petitioner is ineligi-

ble for cancellation of removal because he has been convicted

of an aggravated felony. With a differently configured major-

ity concurring as to each of the following issues, we hold:

(1) Petitioner failed to exhaust the claim that his convic-

tion was not for a violation of a law relating to a controlled

substance within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).

We therefore lack jurisdiction over that claim.

11278 YOUNG v. HOLDER

(2) The evidentiary limitations articulated in Shepard v.

United States, 544 U.S. 13, 26 (2005), apply when determin-

ing, under the modified categorical approach, whether a prior

conviction renders an alien ineligible for cancellation of

removal as an aggravated felon under 8 U.S.C. § 1229b.

(3) Under the modified categorical approach, a guilty plea

to a conjunctively phrased charging document establishes

only the minimal facts necessary to sustain a defendant’s con-

viction. In other words, when a conjunctively phrased charg-

ing document alleges several theories of the crime, a guilty

plea establishes a conviction under at least one, but not neces-

sarily all, of those theories. In so deciding, we reconcile our

inconsistent precedents on this issue by adopting one line of

cases—including Malta-Espinoza v. Gonzales, 478 F.3d 1080,

1082 n.3 (9th Cir. 2007)—and rejecting the other, including

United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.

2008) (en banc) (per curiam).

(4) An alien cannot carry the burden of demonstrating eligi-

bility for cancellation of removal by merely establishing that

the relevant record of conviction is inconclusive as to whether

the conviction is for an aggravated felony. We overrule

Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir.

2007), and Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84

(9th Cir. 2011), to the extent that they conflict with this hold-

ing.

Applying those four holdings to the facts of this case, as we

will explain below, we dismiss the petition in part and deny

it in part.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Joseph Young is a native and citizen of St. Kitts

and Nevis. He became a lawful permanent resident of the

United States in 1977.

YOUNG v. HOLDER 11279

In February of 2005, Petitioner pleaded guilty to “Sale/

Transportation/Offer to Sell” cocaine base in violation of Cal-

ifornia Health & Safety Code section 11352(a).1 He received

a sentence of three years’ imprisonment.

Soon thereafter, the government issued a Notice to Appear,

charging Petitioner with removability both as an alien con-

victed of an offense relating to a controlled substance, 8

U.S.C. § 1227(a)(2)(B)(i),2 and as an alien convicted of an

aggravated felony related to illicit trafficking in a controlled

substance, id. § 1227(a)(2)(A)(iii).3

1

California Health & Safety Code section 11352(a) states:

Except as otherwise provided in this division, every person

who transports, imports into this state, sells, furnishes, adminis-

ters, 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 (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 subdi-

vision (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 pre-

scription of a physician, dentist, podiatrist, or veterinarian

licensed to practice in this state, shall be punished by imprison-

ment pursuant to subdivision (h) of Section 1170 of the Penal

Code for three, four, or five years.

2

Title 8 U.S.C. § 1227(a)(2)(B)(i) states:

Any alien who at any time after admission has been convicted

of a violation of (or a conspiracy or attempt to violate) any law

or regulation of a State, the United States, or a foreign country

relating to a controlled substance (as defined in section 802 of

Title 21), other than a single offense involving possession for

one’s own use of 30 grams or less of marijuana, is deportable.

3

Title 8 U.S.C. § 1227(a)(2)(A)(iii) states that “[a]ny alien who is con-

victed of an aggravated felony at any time after admission is deportable.”

An aggravated felony is defined by 8 U.S.C. § 1101(a)(43)(B), which

states in pertinent part: “The term ‘aggravated felony’ means . . . (B) illicit

trafficking in a controlled substance (as defined in section 802 of Title 21),

including a drug trafficking crime (as defined in section 924(c) of Title

18)[.]"

11280 YOUNG v. HOLDER

At the immigration hearing, the government produced a

copy of the electronic court docket in California Case No.

BA270389 and a felony complaint and information in the

same case. Count 1 of the information charged:

On or about August 26, 2004, in the County of

Los Angeles, the crime of SALE/

TRANSPORTATION/OFFER TO SELL CON-

TROLLED SUBSTANCE, in violation of HEALTH

& SAFETY CODE SECTION 11352(a), a Felony,

was committed by JOSEPH CHRISTOPH [sic]

YOUNG, who did unlawfully transport, import into

the State of California, sell, furnish, administer, and

give away, and offer to transport, import into the

State of California, sell, furnish, administer, and give

away, and attempt to import into the State of Califor-

nia and transport a controlled substance, to wit,

COCAINE BASE.

Thus, the information tracked the wording of section 11352(a)

in its entirety, except that the charge used the conjunctive

“and,” whereas the statutory text uses the disjunctive “or.”

The court records show that Petitioner pleaded guilty to Count

1. At the immigration hearing, he also admitted the factual

allegations in the Notice to Appear.

Following the hearing, the immigration judge (“IJ”) held

that Petitioner was removable on both grounds charged in the

Notice to Appear. With respect to the aggravated felony

ground, the IJ ruled that Petitioner’s guilty plea to Count 1 of

the information constituted a plea “to each and every allega-

tion,” including the sale of cocaine, because Count 1 had been

charged in the conjunctive. Accordingly, the IJ held that Peti-

tioner was ineligible for cancellation of removal and ordered

him removed.

The BIA affirmed in a reasoned opinion. Noting that Peti-

tioner had failed to challenge the IJ’s holding that he was

YOUNG v. HOLDER 11281

removable for a controlled substance conviction, the BIA

upheld his removal on that ground. The BIA did not address

whether Petitioner was also removable for an aggravated fel-

ony conviction.

Next, the BIA held that Petitioner was ineligible for cancel-

lation of removal. Citing 8 U.S.C. § 1229a(c)(4) and 8 C.F.R.

§ 1240.8(d), the BIA observed that Petitioner had the burden

of establishing his eligibility for cancellation, which thus

required Petitioner to show that he had not been convicted of

an aggravated felony. The BIA agreed with the IJ that, under

Ninth Circuit precedent, the guilty plea to the conjunctively

phrased Count 1 established every factual allegation con-

tained therein. Analyzing the record before it, the BIA found

no evidence that Petitioner had not been convicted of an

aggravated felony.

Petitioner timely filed a petition for review. He makes two

main arguments. First, he argues that the BIA erred in finding

him removable for having been convicted of an offense relat-

ing to a controlled substance. Second, he challenges the BIA’s

ruling that he is ineligible for cancellation of removal because

he was convicted of an aggravated felony.

STANDARDS OF REVIEW

Where, as here, the BIA conducts its own review of the evi-

dence and law, our review is limited to the BIA’s decision,

except to the extent that the IJ’s opinion is expressly adopt-

ed.” Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir. 2011)

(internal quotation marks omitted). We review de novo all

questions of law, including whether a particular conviction

qualifies as an aggravated felony. Id.; Carlos-Blaza v. Holder,

611 F.3d 583, 587 (9th Cir. 2010). We review factual findings

for substantial evidence. Antonyan, 642 F.3d at 1254. The

BIA’s factual findings “are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).

11282 YOUNG v. HOLDER

DISCUSSION

A. We lack jurisdiction over the claim that Petitioner was

not convicted of a controlled substance offense.

Petitioner first contends that his conviction was not for a

controlled substance offense. Specifically, he argues that Cali-

fornia Health & Safety Code section 11352(a) regulates more

substances than the federal Controlled Substances Act does.

We must dismiss this claim.

We lack jurisdiction to consider the merits of a legal claim

not presented to the BIA. Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004). Presenting an argument to the BIA

requires reasoning sufficient to put the BIA on notice that it

was called on to decide the issue. Zhang v. Ashcroft, 388 F.3d

713, 721 (9th Cir. 2004) (per curiam). A general challenge to

the IJ’s decision is insufficient; the alien must specify particu-

lar issues on appeal to the BIA. Zara v. Ashcroft, 383 F.3d

927, 930 (9th Cir. 2004).

Under those standards, Petitioner failed to alert the BIA to

this issue. Although he points to certain statements in his brief

to the BIA, those statements pertained only to his removabil-

ity as an aggravated felon. Indeed, the sentences on which he

relies are in the middle of a section titled “THE IMMIGRA-

TION JUDGE ERRED IN FINDING THAT [PETITIONER]

WAS CONVICTED OF AN AGGRAVATED FELONY.”

Taken as a whole and fairly read in context, neither the notice

of appeal nor the brief to the BIA informed the BIA of a chal-

lenge to the controlled substance ground of removability.

Therefore, we dismiss this unexhausted challenge.4

4

Because the BIA found Petitioner removable only on the controlled

substance ground, it did not reach the question whether he is removable

for conviction of an aggravated felony. Neither do we.

YOUNG v. HOLDER 11283

B. The record of conviction is inconclusive as to whether

the conviction was for an aggravated felony; thus, Peti-

tioner has not carried the burden of establishing his eli-

gibility for cancellation of removal.

Petitioner next argues that the BIA erred in finding him to

be an aggravated felon and thus ineligible for cancellation of

removal under 8 U.S.C. § 1229b(a)(3). We deny the petition

for review on this claim.

1. Shepard limits the documents that we may consider.

[1] In both criminal and immigration contexts, we often

must inquire whether an individual’s prior state conviction

constitutes a conviction for a generic federal crime. See, e.g.,

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-86 (2007)

(applying, in the immigration context, the approach set forth

in Taylor v. United States, 495 U.S. 575, 599-600 (1990), in

the criminal sentencing context); United States v. Aguila-

Montes de Oca, 655 F.3d 915, 922 (9th Cir. 2011) (en banc)

(per curiam) (Bybee, J., opinion) (noting that we “have

extended that Taylor/Shepard framework” to a variety of con-

texts, including immigration). “The categorical and modified

categorical frameworks, first outlined by the Supreme Court

in [Taylor] establish the rules by which the government may

use prior state convictions to enhance certain federal sen-

tences and to remove certain aliens.” Aguila-Montes de Oca,

655 F.3d at 917.

[2] Under the categorical approach, we “look only to the

fact of conviction and the statutory definition of the prior

offense.” Taylor, 495 U.S. at 602; see also Kawashima v.

Holder, 132 S. Ct. 1166, 1172 (2012) (“[W]e employ a cate-

gorical approach by looking to the statute defining the crime

of conviction, rather than to the specific facts underlying the

crime.”). In applying the categorical approach, we “ ‘compare

the elements of the statute of conviction with a federal defini-

tion of the crime to determine whether conduct proscribed by

11284 YOUNG v. HOLDER

the statute [of conviction] is broader than the generic federal

definition.’ ” Cortez-Guillen v. Holder, 623 F.3d 933, 935

(9th Cir. 2010) (alteration in original) (quoting Cerezo v.

Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008)).

[3] Here, the statute of conviction, California Health &

Safety Code section 11352(a), is admittedly broader than the

generic federal crime because it encompasses some conduct

outside the definition of the federal crime. An “aggravated

felony” is defined in 8 U.S.C. § 1101(a)(43)(B) as “including

a drug trafficking crime (as defined in section 924(c) of Title

18).” Section 11352(a), however, criminalizes the mere solici-

tation of, or offer to sell, a controlled substance, which is not

an aggravated felony, Levya-Licea v. INS, 187 F.3d 1147,

1150 (9th Cir. 1999), as well as the sale of cocaine, which is

one. Under the categorical approach, therefore, Petitioner’s

conviction does not qualify as an aggravated felony.

[4] When, as here, the state statute of conviction criminal-

izes a broader range of conduct than the generic federal crime,

we employ the “modified categorical approach,” which

requires us to determine whether “a jury was actually

required to find all the elements” of the generic federal crime.

Aguila-Montes de Oca, 655 F.3d at 920 (internal quotation

marks omitted). When applying the modified categorical

approach in the context of a guilty plea, we must “determine

whether a guilty plea to an offense defined by a nongeneric

statute necessarily admitted elements of the generic offense.”

Id. at 921 (emphasis added) (internal quotation marks omit-

ted).

[5] In Shepard, 544 U.S. at 26, the Supreme Court

imposed evidentiary limitations on the types of documents

that we may consider under the modified categorical

approach; we may review only the charging instrument, tran-

script of the plea colloquy, plea agreement, and comparable

judicial record of this information. Id. That holding applies

here.

YOUNG v. HOLDER 11285

The dissent on this point would hold that, when determin-

ing eligibility for cancellation of removal, the IJ should be

able to consider evidence beyond the documents allowed

under Shepard. Judge Ikuta’s dissent at 11306, 11315. The

dissent relies heavily on Nijhawan v. Holder, 557 U.S. 29

(2009), to reach that conclusion. But in Nijhawan, the

Supreme Court allowed inquiry beyond the Shepard docu-

ments only after it held that the statutory text demanded a

circumstance-specific inquiry, rather than a categorical one.5

Id. at 40. As we have previously observed, in Nijhawan,

“[t]he Court held that the provision calls for a ‘circumstance-

specific,’ not a ‘categorical,’ interpretation.” Aguila-Montes

de Oca, 655 F.3d at 921 (internal quotation marks omitted).

For that reason, the Court rejected the application of the mod-

ified categorical approach and held that, in determining

whether a previous conviction met the $10,000 threshold, the

immigration court need not observe the evidentiary limita-

tions articulated in Shepard. Id. Under Nijhawan, then, a fact-

specific approach is appropriate only when the statute refers

to “the specific circumstances in which a crime was commit-

5

In Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 n.11 (2010),

the Supreme Court recognized the narrowness of its holding in Nijhawan:

Our decision last Term in Nijhawan . . . rejected the so-called

categorical approach . . . when assessing whether, under 8 U.S.C.

§ 1101(a)(43)(M)(i), a noncitizen has committed “an offense that

. . . involves fraud or deceit in which the loss to the . . . victims

exceeds $10,000.” Our analysis was tailored to the

“circumstance-specific” language contained in that particular

subsection of the aggravated felony definition. And we specifi-

cally distinguished the “generic” categories of aggravated felo-

nies for which a categorical approach might be appropriate—

including the “illicit trafficking” provision—from the

“circumstance-specific” offense at hand. Moreover, . . . there was

no debate in Nijhawan over whether the petitioner actually had

been “convicted” of fraud; we only considered how to calculate

the amount of loss once a conviction for a particular category of

aggravated felony has occurred.

(Citations omitted.)

11286 YOUNG v. HOLDER

ted,” id. (internal quotation marks omitted), but the modified

categorical approach—with its attendant evidentiary

limitations—continues to apply when the statute refers to

generic crimes.

[6] Unlike in Nijhawan, the statutory text at issue here pro-

vides no justification for abandoning the now-traditional mod-

ified categorical approach in favor of a “circumstance-

specific” inquiry. See Carachuri-Rosendo v. Holder, 130

S. Ct. 2577, 2586 (2010) (holding that, to determine eligibility

for cancellation of removal, the focus of the inquiry is on the

prior “conviction itself,” not on the circumstances surround-

ing the conviction, and suggesting that the categorical

approach is appropriate to determine whether a prior convic-

tion qualifies as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B), the provision at issue here). Instead,

§ 1229b requires a legal assessment of whether the prior

crime of conviction constitutes a generic federal offense. 8

U.S.C. § 1229b(a)(3). In answering that question, we may not

consider whether the conduct underlying the prior conviction

potentially could meet the elements of a federal generic

offense, but must, instead, determine the elements upon which

the conviction necessarily rested. Aguila-Montes de Oca, 655

F.3d at 920-21.

If anything, the Supreme Court’s reasoning for why Shep-

ard did not apply in Nijhawan supports the application of

Shepard here. The Court explained that Shepard had no appli-

cation to a circumstance-specific inquiry because Shepard

"developed the evidentiary list . . . for [the purpose] of deter-

mining which statutory phrase (contained within a statutory

provision that covers several different generic crimes) cov-

ered a prior conviction.” Nijhawan, 529 U.S. at 41. “[W]hich

statutory phrase . . . covered a prior conviction,” id., is pre-

cisely the inquiry before us here.

The dissent also points to 8 U.S.C. § 1229a(c)(4)(B) to sup-

port the position that the Shepard evidentiary limitations do

YOUNG v. HOLDER 11287

not apply. Judge Ikuta’s dissent at 11305-06. But that provi-

sion merely allows the IJ to require corroborative evidence for

testimony presented by the applicant, even when the witness

is deemed credible.6 8 U.S.C. § 1229a(c)(4)(B); Rosas-

Castaneda, 655 F.3d at 884-85. It says nothing about opening

the door for additional evidence to supplement the documen-

tary record of conviction allowed under Shepard. Thus, noth-

ing in the text of the statute suggests that courts may depart

from the usual categorical and modified categorical

approaches when determining whether a prior conviction pre-

cludes eligibility for cancellation of removal. Moreover, in

explaining the modified categorical approach, the Supreme

Court has emphasized the importance of strictly limiting the

inquiry. See, e.g., Shepard, 544 U.S. at 23 (holding that strict

evidentiary limitations were “the heart” of the framework cre-

ated in Taylor).

Finally, even the dissent agrees that the modified categori-

cal approach applies here and that the IJ must “adjudicate

only the nature of the conviction.” Judge Ikuta’s dissent at

11316-17, 11319-20. But the additional evidence that the dis-

sent would have the IJ consider is largely irrelevant to the

question that matters for the modified categorical approach.

Under the modified categorical approach, determining the

nature of the conviction means deciding which elements a

jury “was actually required to find” or which elements the

guilty plea “necessarily admitted.” Aguila-Montes de Oca,

655 F.3d at 920-21 (emphasis omitted). Extraneous evidence,

such as police reports or the alien’s testimony, cannot answer

that precise legal question.

6

Aliens have the burden of establishing many requirements to demon-

strate eligibility for cancellation of removal, and they may introduce testi-

mony to establish, for instance, that they had “good moral character

during” their presence in the United States or “that removal would result

in exceptional and extremely unusual hardship to the alien’s spouse, par-

ent, or child.” 8 U.S.C. § 1229b(b)(1).

11288 YOUNG v. HOLDER

Accordingly, in conducting the modified categorical analy-

sis to determine whether Petitioner was convicted of an aggra-

vated felony, we may rely only on the documents allowed

under Shepard.

2. Under the modified categorical approach, a guilty plea

to a conjunctive count does not necessarily admit every

possible version of the crime.

[7] Under the Shepard limitations, the only relevant docu-

ment before the BIA was the criminal information. To reiter-

ate, it alleged that Petitioner

did unlawfully transport, import into the State of

California, sell, furnish, administer, and give away,

and offer to transport, import into the State of Cali-

fornia, sell, furnish, administer, and give away, and

attempt to import into the State of California and

transport a controlled substance, to wit, COCAINE

BASE.

The question thus becomes whether, under the modified cate-

gorical approach, Petitioner’s guilty plea constitutes an admis-

sion of transporting, importing, selling, furnishing,

administering, and giving away cocaine, and offering or

attempting to do those things, or whether, instead, it simply

establishes that he was convicted for at least one of those acts.

In other words, if a defendant pleads guilty to “A and B,”

where either “A” or “B” is sufficient to sustain a state convic-

tion but only the commission of “A” would constitute a

generic federal offense, then, under the modified categorical

approach, did the defendant necessarily admit both “A” and

“B"?

[8] A threshold consideration is whether we are to answer

that question under federal law or under state law. We hold

that federal law principles determine the effect of a guilty plea

under the modified categorical approach. To apply the dispa-

YOUNG v. HOLDER 11289

rate rules of the many possible convicting jurisdictions—

potentially from each of the 50 states, the territories, and

many foreign countries—would undermine the principles of

uniformity and simplicity that led the Supreme Court to adopt

the categorical approach in Taylor. See Aguila-Montes de

Oca, 655 F.3d at 964 (Berzon, J., concurring in judgment)

(observing that applying state procedural rules to determine

whether non-elemental facts are admitted by a defendant’s

guilty plea adds a “layer of dis uniformity in the application

of the modified categorical approach”). Moreover, applying

federal principles rather that state law rules to determine the

effect of a guilty plea conserves judicial resources and pre-

vents inter-circuit splits over the interpretation of state proce-

dural rules.7 We turn, then, to our inconsistent precedents,

which implicitly applied federal law as we now explicitly do.

[9] Our jurisprudence contains two lines of cases, each

providing a different approach. Compare Snellenberger, 548

F.3d at 701 (holding that a guilty plea to a conjunctively

phrased information constitutes an admission of all the allega-

tions contained therein),8 with Malta-Espinoza, 478 F.3d at

7

We still may look to state law to understand the meaning of a state-

specific type of plea to a state criminal charge. For example, in United

States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc), we relied

on California law to determine that, “in the context of a People v. West

plea [in a California state court], a court is not limited to accepting a guilty

plea only to the offense charged but can accept a guilty plea to any reason-

ably related lesser offense.” (Internal quotation marks and brackets omit-

ted.) In other words, we consulted state law to understand that a West plea

might constitute a guilty plea to one of several offenses, including conduct

other than that alleged in the charging document. Id. at 1088. Whether a

guilty plea to an overly inclusive conjunctive charge suffices to establish

conviction for a generic federal crime is, however, a question of federal

law.

8

See also Aguila-Montes de Oca, 655 F.3d at 945 (concluding, without

analysis, that “[w]hen a defendant pleads guilty to a count, he admits the

factual allegations stated in that count”); United States v. Williams, 47

F.3d 993, 995 (9th Cir. 1995) ("When a defendant pleads guilty . . . to

facts stated in the conjunctive, each factual allegation is taken as true.”

11290 YOUNG v. HOLDER

1082 n.3 (holding that a guilty plea to a conjunctively phrased

charging document alleging several theories of the crime does

not constitute an admission to all of the alternate theories).9

We now adopt the Malta Espinoza line of cases and hold that,

under the modified categorical approach, when a conjunc-

tively phrased charging document alleges several theories of

the crime, a guilty plea establishes conviction under at least

one of those theories, but not necessarily all of them.

The nature of the modified categorical framework suggests

that, when a defendant pleads guilty to a charging document

alleging “A and B,” that plea implies a conviction for “A” or

“B.” Under the modified categorical approach, we must “de-

termine whether a guilty plea to an offense defined by a non-

generic statute necessarily admitted elements of the generic

offense.” Aguila-Montes de Oca, 655 F.3d at 921 (emphasis

added) (internal quotation marks omitted). We have held that

a guilty plea “is an admission of each and every element

required to establish the offense.” United States v. Kidder,

869 F.2d 1328, 1332-33 (9th Cir. 1989). “The effect is the

same as if appellant had been tried before a jury and had been

found guilty on evidence covering all of the material facts.”

(citing United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987));

Mathews, 833 F.2d at 163 (“The effect of a guilty plea is well established:

it is an admission of all the elements of a formal criminal charge and con-

clusively admits all factual allegations of the indictment.” (internal quota-

tion marks and citation omitted)).

9

See also Vidal, 504 F.3d at 1088-89 (holding that a guilty plea to an

overly inclusive charge does not establish that the defendant was con-

victed of a generic crime); Penuliar v. Mukasey, 528 F.3d 603, 612-14

(9th Cir. 2008) (same); United States v. Forrester, 616 F.3d 929, 945 (9th

Cir. 2010) (noting that the court “declin[es] to treat guilty pleas as admit-

ting factual allegations in the indictment not essential to the government’s

proof of the offense” (internal quotation marks omitted)); United States v.

Cazares, 121 F.3d 1241, 1248 (9th Cir. 1997) (holding that the effect of

a guilty plea is limited “to an admission of the facts essential to the valid-

ity of the conviction”).

YOUNG v. HOLDER 11291

United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971) (per

curiam).

But, when an indictment charges several theories of the

same crime, proof of any one of those theories would be suffi-

cient to establish the offense. When the underlying statute

proscribes more than one act disjunctively, it is common for

prosecutors to charge in the conjunctive, yet it is well estab-

lished that, to prove such a charge, a prosecutor need only

prove in the disjunctive—one version of the crime. Malta-

Espinoza, 478 F.3d at 1082. In other words, when a statute

proscribes “A or B,” a prosecutor who indicts a defendant on

a charge of “A and B” need only prove “A” or “B” in order

to achieve a conviction. See United States v. Booth, 309 F.3d

566, 572 (9th Cir. 2002) (“When a statute specifies two or

more ways in which an offense may be committed, all may be

alleged in the conjunctive in one count and proof of any one

of those conjunctively charged acts may establish guilt.”).

Thus, when an indictment charges several theories, admis-

sion of any one of those theories constitutes “an admission of

each and every element required to establish the offense.”

Kidder, 869 F.2d at 1332-33. The implication is that

allegations not necessary to be proved for a convic-

tion . . . are not admitted by a plea. Any other rule

would be inconsistent with the rationale underlying

these decisions that the effect of a guilty plea is the

same as if defendant had been tried before a jury and

had been found guilty on evidence covering all of

the material facts.

Cazares, 121 F.3d at 1247 (internal quotation marks and

brackets omitted). The fact that a guilty plea admits all ele-

ments necessary to sustain a conviction does not imply that it

also admits all unnecessary or duplicative elements charged as

alternative theories of the crime.

11292 YOUNG v. HOLDER

Indeed, holding that pleading guilty to a charging document

that alleges “A and B” necessarily admits “A” and “B” would

create inconsistency in the application of the modified cate-

gorical framework to jury convictions and guilty pleas. We

have held that, under the modified categorical approach, a

defendant found guilty by a jury under an indictment alleging

“A and B” was not necessarily convicted of both “A” and

“B.” United States v. Espinoza-Morales, 621 F.3d 1141,

1149-52 (9th Cir. 2010). In those circumstances, assuming

that “A” would qualify as a predicate offense and “B” would

not, the jury was not “actually required to find all the ele-

ments” of the generic crime, because the jury could have

based its conviction on the defendant’s commission of “B”

alone. Id. at 1151 (emphasis added) (internal quotation marks

omitted); see id. at 1149-50 (holding that the prior conviction

for sexual battery did not fit the federal definition because,

“[e]ven though the state charged [the defendant] in the

conjunctive—with accomplishing the penetration by means of

force, violence, duress, menace and fear—this charge could

have supported a conviction based on duress alone”). Unless

the jury’s verdict form specified (or the jury instructions made

clear) that the finding of guilt necessarily rested on the defen-

dant’s commission of “A,” the conviction would not qualify

as a predicate offense. Id. at 1150-52. Similarly, a defendant

who pleads guilty to “A and B” should not be held to have

necessarily admitted either allegation, unless other docu-

ments, such as the defendant’s statements at the plea collo-

quy, establish a narrower basis for the conviction.

The foregoing conclusion comports with the decisions of

our sister circuits that have considered the issue under federal

law. The Third and Fourth Circuits have held that, under the

modified categorical approach, a defendant who pleads guilty

to “A and B” does not admit both “A” and “B.” United States

v. Vann, 660 F.3d 771, 774 (4th Cir. 2011) (en banc) (per

curiam); Valansi v. Ashcroft, 278 F.3d 203, 214, 216-17 &

n.10 (3d Cir. 2002). Instead, the plea establishes conviction

for “A” or “B,” so a record of conviction consisting solely of

YOUNG v. HOLDER 11293

the charging instrument would be inconclusive. Vann, 660

F.3d at 774; Valansi, 278 F.3d at 214, 216-17 & n.10. Of

course, if the defendant admitted either “A” or “B” during the

plea colloquy, that would constitute an admission of the par-

ticular conduct. Cf. Valansi, 278 F.3d at 214 (scrutinizing the

plea colloquy to determine whether the defendant admitted

fraudulent intent when the indictment charged the defendant

with “intent to injure and defraud”). The Fifth Circuit has

reached the same conclusion, although it has sometimes relied

on state law to do so. See United States v. Morales-Martinez,

496 F.3d 356, 359-60 (5th Cir. 2007) (relying on state law);

see also Omari v. Gonzales, 419 F.3d 303, 308 & n.10 (5th

Cir. 2005) (apparently relying on federal law to hold that a

defendant who pleads guilty to “interstate transportation of

stolen, converted and fraudulently obtained property” does

not necessarily admit to transporting fraudulently obtained

property).

The Eighth and Tenth Circuits have reached the opposite

conclusion, holding that pleading guilty to “A and B” neces-

sarily establishes “A” and “B,” but both courts relied on state

law to reach that result. United States v. Ojeda-Estrada, 577

F.3d 871, 877 (8th Cir. 2009); United States v. Torres-

Romero, 537 F.3d 1155, 1159-60 & n.2 (10th Cir. 2008).

Because we have held that federal law applies to this issue,

we do not find the Eighth and Tenth Circuits’ decisions per-

suasive. Furthermore, Federal Practice and Procedure states

that the “better rule” is the one that treats the plea as “an

admission of only those facts that are essential to the convic-

tion.” 1A The Late Charles A. Wright et al., Federal Practice

and Procedure § 172 (4th ed. 2012).

[10] In sum, when either “A” or “B” could support a con-

viction, a defendant who pleads guilty to a charging document

alleging “A and B” admits only “A” or “B.” Thus, when the

record of conviction consists only of a charging document

that includes several theories of the crime, at least one of

which would not qualify as a predicate conviction, then the

11294 YOUNG v. HOLDER

record is inconclusive under the modified categorical

approach.

[11] Applying that rule to this case reveals that the record

is inconclusive as to whether Petitioner was convicted of an

aggravated felony. Petitioner 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.

Because we cannot tell from the record of conviction whether

Petitioner was convicted of selling cocaine, which is an aggra-

vated felony under 8 U.S.C. § 1101(a)(43)(B), or merely of

solicitation, which is not, Petitioner’s record of conviction is

inconclusive. See Rosas-Castaneda, 655 F.3d at 885 (holding

that solicitation offenses do not constitute aggravated felonies

under 8 U.S.C. § 1101(a)(43)(B)).

3. An inconclusive record of conviction does not satisfy

Petitioner’s burden to demonstrate eligibility for can-

cellation of removal.

[12] The REAL ID Act places the burden of demonstrating

eligibility for cancellation of removal squarely on the nonciti-

zen. 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d). Under the

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

she is eligible for any requested benefit or privilege.” 8 C.F.R.

§ 1240.8(d). Thus, “[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 prov-

ing by a preponderance of the evidence that such grounds do

not apply.” Id. (emphasis added). To demonstrate eligibility

for cancellation of removal, the petitioner must show that he

or she “has not been convicted of any aggravated felony.” 8

U.S.C. § 1229b(a)(3). By placing the burden on the alien to

show that prior convictions do not constitute aggravated felo-

nies, the REAL ID Act established that an inconclusive record

of conviction does not demonstrate eligibility for cancellation

of removal, notwithstanding our holdings to the contrary in

YOUNG v. HOLDER 11295

Sandoval-Lua, 499 F.3d at 1130, and Rosas-Castaneda, 655

F.3d at 886.

In the removal context, the government bears the burden of

establishing deportablility. Young Sun Shin v. Mukasey, 547

F.3d 1019, 1024 (9th Cir. 2008). When the record of convic-

tion is inconclusive, “the government has not met its burden

of proof, and the conviction may not be used for purposes of

removal.” Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir.

2004). It makes equal sense that when the burden rests on the

alien to show eligibility for cancellation of removal, an incon-

clusive record similarly is insufficient to satisfy the alien’s

burden of proof. See Salem v. Holder, 647 F.3d 111, 115-16

(4th Cir. 2011) (holding that an inconclusive record is insuffi-

cient to carry the alien’s burden of demonstrating eligibility

for cancellation of removal), cert. denied, 132 S. Ct. 1000

(2012); Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir.

2009) (same). But see Martinez v. Mukasey, 551 F.3d 113,

122 (2d Cir. 2008) (holding that an inconclusive record satis-

fies the alien’s burden).

[13] This result comports with our general understanding

of the burden of persuasion, which determines “which party

loses if the evidence is closely balanced.” Schaffer ex rel.

Schaffer v. Weast, 546 U.S. 49, 56 (2005). The party who

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

v. Loesser, 205 F.2d 521, 523 (9th Cir. 1953); see also

Black’s Law Dictionary 223 (9th ed. 2009) (“[B]urden of

proof denotes the duty of establishing by a fair preponderance

of the evidence the truth of the operative facts upon which the

issue at hand is made to turn by substantive law.” (internal

quotation marks omitted)). Here, the critical inquiry is

whether the alien was convicted of a predicate crime. Because

the burden of proof rests on the alien, the alien must establish

that he or she was not convicted of such a crime. If the evi-

dence is “closely balanced,” Schaffer, 546 U.S. at 56, the

alien cannot carry that burden. By demonstrating that the

record of conviction is inconclusive, the alien has failed to

11296 YOUNG v. HOLDER

establish the absence of a predicate crime. Instead, the alien

has simply demonstrated that the evidence about the nature of

the conviction is in equipoise. The alien therefore cannot

carry the burden of proof with an inconclusive record.

The dissent on this point argues that it is unfair to require

aliens to demonstrate that they have not been convicted of a

predicate crime and to require them to rely only on certain

state court records in doing so. Although some aliens will

surely face challenges using only the Shepard documents to

prove that they were not convicted of a predicate crime, that

result is not so absurd that Congress could not have intended

it. The dissent’s contrary conclusion boils down to its belief

that, because of the imbalance of power between the alien and

the state, the alien should receive the benefit of the doubt

when the record is inconclusive. But the plain text of the stat-

ute dictates otherwise. By definition, the party who bears the

burden of proof does not get the benefit of the doubt. Here,

Congress has placed the burden on the alien; to give the alien

the benefit of the doubt would thus contravene Congress’

plainly expressed intent.

[14] In summary, the REAL ID Act makes clear that the

alien bears the burden of demonstrating eligibility for cancel-

lation of removal. It would be inconsistent with our general

understanding of the burden of proof to allow the alien to

meet that burden by establishing only an inconclusive record.

To the extent that Sandoval-Lua and Rosas-Castaneda allow

the alien to do so, they are hereby overruled. A petitioner can-

not carry the burden of demonstrating eligibility for cancella-

tion of removal by establishing an inconclusive record of

conviction.

[15] Applying that rule to this case, it is clear that Peti-

tioner has failed to meet his burden of demonstrating eligibil-

ity for cancellation of removal. The record of conviction, as

discussed above, is inconclusive, because Petitioner pleaded

guilty to a charging document alleging 14 different theories of

YOUNG v. HOLDER 11297

how he could have violated California Health & Safety Code

section 11352(a), some—but not all—of which would qualify

as aggravated felonies. It is possible that Petitioner’s prior

conviction constitutes an aggravated felony; it is also possible

that it does not. But Petitioner bears the burden of demonstrat-

ing that he was not convicted of an aggravated felony, and he

has failed to do so. The BIA therefore correctly denied Peti-

tioner’s application for cancellation of removal.

PETITION DISMISSED IN PART, DENIED IN PART.

B. FLETCHER, Circuit Judge, concurring in part and dissent-

ing in part, with whom SCHROEDER, PREGERSON,

FISHER, and PAEZ, Circuit Judges, join:

I join the majority opinion except as to discussion section

B.3. I respectfully dissent from the court’s decision to over-

rule Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th

Cir. 2007), and Rosas-Castaneda v. Holder, 655 F.3d 875,

883-84 (9th Cir. 2011). The majority view on this issue leads

to a result that is unjust to lawful permanent residents seeking

cancellation of removal and that Congress cannot have

intended.

Our opinion in Sandoval-Lua is thorough and well-

reasoned. In it we considered whether a lawful permanent res-

ident who was removable based on a conviction for a con-

trolled substance offense could seek cancellation of removal.

Sandoval-Lua, 499 F.3d at 1123-24. We began by determin-

ing that Sandoval-Lua’s California conviction (under a statu-

tory provision virtually identical to the one under which

Young was convicted) was not categorically an aggravated

felony because the California statute criminalizes conduct not

covered by the federal Controlled Substances Act. Id. at 1128.

Next, we turned to the modified categorical approach and

found, as in Young’s case, that the judicially noticeable docu-

11298 YOUNG v. HOLDER

ments were inconclusive as to the nature of Sandoval-Lua’s

conviction. Id. at 1129.

Finally, we held that Sandoval-Lua had “affirmatively

proven under the modified categorical analysis that he was

not necessarily ‘convicted of any aggravated felony.’ ” Id. at

1130 (quoting 8 U.S.C. § 1229b(a)(3)). In doing so, we made

clear that we had considered that Sandoval-Lua bore the bur-

den of proof under 8 C.F.R. § 1240.8, but that under the cate-

gorical approach there are only two possible results: the

record of conviction either establishes that the applicant was

necessarily convicted of an aggravated felony or the record

does not. Id. at 1131-32. We correctly explained that the evi-

dentiary limits imposed by Taylor v. United States, 495 U.S.

575 (1990), and Shepard v. United States, 544 U.S. 13 (2005),

are not merely practical—they also cabin the court’s inquiry

to the correct legal question, which is whether the lawful per-

manent resident has been “convicted” of an aggravated fel-

ony, not whether he engaged in conduct that falls within the

definition of an aggravated felony. Id. at 1131-32; see also

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 (2010)

(explaining that the text of 8 U.S.C. § 1229b(a)(3) directs

courts to determine the nature of the lawful permanent resi-

dent’s conviction, not his conduct).

We recently considered whether the REAL ID Act changed

Sandoval-Lua’s result, and we concluded that it did not.

Rosas-Castaneda, 655 F.3d at 884. As we explained in Rosas-

Castaneda, 8 U.S.C. § 1229a(c)(4)(A) merely codified the

burden of proof imposed on the alien by 8 C.F.R. § 1240.8,

which we carefully analyzed in Sandoval-Lua. Id. at 883-84;

see also H.R. Rep. No. 109-72, at 169 (2005) (Conf. Rep.)

(“The new paragraph also codifies the current requirement

that an alien applying for relief or protection from removal

bears the burden of satisfying the eligibility requirements for

that relief or protection, and also that he or she merits the

relief as a matter of discretion, if the relief is discretionary.”

(emphasis added)). We should adhere to our prior precedents

YOUNG v. HOLDER 11299

and hold that Young’s inconclusive record of conviction car-

ried his burden of proof.

For the reasons that the majority opinion elegantly sets out,

it makes no sense to discard the categorical approach or Shep-

ard’s limitation on the documents to be considered in deter-

mining whether a lawful permanent resident has been

convicted of an aggravated felony. But I cannot agree that

Congress intended that an application for cancellation of

removal be decided on the basis of whether state court records

happen to be sufficiently clear to prove a negative (i.e. that

the lawful permanent resident was not convicted of an aggra-

vated felony). Indeed, the clarity of state court plea or convic-

tion records will often depend upon the habits and preferences

of the individual trial judge and the clerk of the court. The

decision to remove a lawful permanent resident from this

country should not turn on the vagaries of state court record

keeping.

Even in cases where there exist state court records conclu-

sively showing that a conviction was not for an aggravated

felony, applicants may be unable to obtain them for a variety

of reasons—for example, because of language barriers, a lack

of information about the court system, their detained status, or

an inability to pay fees for copies of court records. In contrast,

the government has access to such documents. As Young

points out, the law frequently places the burden of production

on the party in the better position to obtain the evidence, even

when the opposing party bears the burden of proof.1 See, e.g.,

United States v. Cortez-Rivera, 454 F.3d 1038, 1041 (9th Cir.

2006) (“Burdens are generally placed on the party who is in

1

The term “burden of proof” encompasses “two separate burdens: the

‘burden of persuasion’ (specifying which party loses if the evidence is bal-

anced), as well as the ‘burden of production’ (specifying which party must

come forward with evidence at various stages in the litigation).” Microsoft

Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2245 n.4 (2011). That the gov-

ernment bears the burden of production does not shift the burden of per-

suasion, which still rests with the applicant.

11300 YOUNG v. HOLDER

the best position to present the evidence.”); Dubner v. City &

Cnty. of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001).

Our current rule effectively does just that, by creating an

incentive for government attorneys to obtain all relevant con-

viction documents and provide them to the IJ in removal pro-

ceedings. Under the majority’s approach, however, the

government may produce only minimal state court records

sufficient to show that a person is removable on some ground

other than conviction for an aggravated felony—for example,

conviction for a drug crime. The burden then shifts to the

legal permanent resident to prove a negative—that he has not

been convicted of an aggravated felony. See 8 C.F.R.

§ 1240.8(d). The government can stand by as the lawful per-

manent resident attempts to produce further records of convic-

tion, which the government may already have or be able to

obtain more easily.

Young’s case illustrates the mischief that the majority’s

rule will work. The government submitted to the IJ records

relating to Young’s two California drug convictions. Those

records were insufficient to establish that Young had been

convicted of an aggravated felony under the modified categor-

ical approach. After the panel decided this case, the govern-

ment obtained a transcript of Young’s 2005 guilty plea.

Contrary to the government’s assertions, there was no reason

it could not have obtained the transcript six years ago and

presented it to the IJ in order to establish that Young was con-

victed of an aggravated felony. If the government had done

so, it would have increased the reliability of the administrative

decision in this case and likely avoided years of appellate liti-

gation.

My concern, however, is what will happen in a future case

where a transcript or other state court record contains infor-

mation helpful to a pro se detained immigrant. Suppose a law-

ful permanent resident pleaded guilty to a charging document

alleging that he did A and B, where only B would constitute

an aggravated felony. There is a plea transcript that makes

YOUNG v. HOLDER 11301

clear that the lawful permanent resident pleaded guilty to A

but not B. If the government does not produce that transcript,

which its attorneys may have no reason to do, how will the

lawful permanent resident be able to locate it, or even know

that it exists? That lawful permanent resident will be denied

the opportunity to even try to show that he merits a favorable

exercise of the attorney general’s discretion through a grant of

cancellation of removal. Congress cannot have intended such

an arbitrary result.

Sandoval-Lua and Rosas-Castaneda harmonized

§ 1229a(c)(4) and § 1229b(a)(3) by placing the burden of

proof squarely on the applicant for cancellation of removal,

but requiring that the kind and quantum of evidence necessary

to carry that burden be evaluated in light of the evidentiary

limits imposed by the modified categorical approach. I would

remain faithful to those well-reasoned precedents, which com-

port with the demands of fairness.

IKUTA, Circuit Judge, concurring in part and dissenting in

part, with whom KLEINFELD, CLIFTON, and BEA, Circuit

Judges, join:

In today’s splintered decision, a two-judge “majority”1

holds that Congress intended strict and arbitrary evidentiary

1

It is useful to summarize how the voting has led us to this strange

result. Seven judges (the two who join Judge Graber’s opinion and the five

who join Judge Fletcher’s opinion) agree that the evidentiary limitations

articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply to

aliens seeking to prove their eligibility for cancellation of removal. Six

judges (the two who join Judge Graber’s opinion and the four who join my

opinion) agree that an alien cannot meet the burden of showing such eligi-

bility by a preponderance of the evidence by simply establishing that the

alien’s record of conviction is inconclusive. Only two judges agree with

both of these holdings, but the resulting pastiche forms the unconven-

tional, and as I explain later, illogical, “majority.”

11302 YOUNG v. HOLDER

limitations to be read into the cancellation of removal statute,

despite the fact that the statute clearly states an alien’s rights

to introduce evidence and testimony. Correctly recognizing

that the “majority’s” holding is absurd, five judges have voted

to alleviate the inherent unfairness by redefining the statutory

language to mean the exact opposite of what it actually says.

Both approaches are wrong: both are contrary to the plain lan-

guage of the statute, and both reach outcomes that are neither

contemplated by Congress nor dictated by common sense. I

therefore dissent from the en banc decision as a whole, and I

write separately to demonstrate why this confusion could have

been avoided if we had just followed what the statute says.

I

The question before the court is whether the BIA erred in

holding that Joseph Young, a lawful permanent resident, was

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

§ 1229b(a). Young asserts that even if he is removable, the

BIA and IJ erred in concluding that he did not meet his bur-

den of proving eligibility for cancellation of removal because

he had necessarily been convicted of an aggravated felony.

Young notes that section 11352(a) of the California Health &

Safety Code,2 his crime of conviction, criminalizes mere

solicitation or offer to sell a controlled substance, which is not

an aggravated felony, see United States v. Rivera-Sanchez,

247 F.3d 905, 908-09 (9th Cir. 2001) (en banc), as well as the

sale of that substance, which is one. Because the relevant

records do not establish that his conviction under section

2

California Health & Safety Code § 11352(a) states, in pertinent part:

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, fur-

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

state or transport [a designated controlled substance] shall be

punished by imprisonment pursuant to subdivision (h) of Section

1170 of the Penal Code for three, four, or five years.

YOUNG v. HOLDER 11303

11352(a) was for selling a controlled substance (cocaine), as

opposed to offering to sell it, Young argues that the record is

inconclusive on the crucial question whether he was convicted

of an aggravated felony, and therefore he remains eligible for

cancellation of removal.

A

Cancellation of removal is a form of relief that is granted

and governed by the Immigration and Nationality Act (INA),

and it is upon that statute that our analysis should focus.

Under 8 U.S.C. § 1229b, the Attorney General may cancel

removal of an alien who has been determined to be inadmissi-

ble or removable from the United States if the alien meets

three statutory criteria. 8 U.S.C. § 1229b(a).3 One of these

criteria is that the alien not have been “convicted of any

aggravated felony,” id. § 1229b(a)(3), which is defined in

§ 1101(a)(43)(B) as “including a drug trafficking crime (as

defined in section 924(c) of Title 18).” A conviction for the

sale of cocaine (which is listed as offense conduct in section

11352(a)), qualifies as an “aggravated felony” because such

an offense meets the federal definition of “drug trafficking

crime” in 18 U.S.C. § 924(c).4

3

With respect to eligibility for cancellation of removal, § 1229b(a) pro-

vides:

The Attorney General may cancel removal in the case of an alien

who is inadmissible or deportable from the United States if the

alien—

(1) has been an alien lawfully admitted for permanent residence

for not less than 5 years,

(2) has resided in the United States continuously for 7 years after

having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

In addition, the alien must merit a favorable exercise of discretion. See 8

U.S.C. § 1229a(c)(4)(ii).

4

Section 924(c)(2) defines a “drug trafficking crime” as including “any

felony punishable under the Controlled Substances Act,” codified at 21

11304 YOUNG v. HOLDER

The REAL ID Act of 2005 amended the INA to codify the

procedures for reviewing an alien’s application for cancella-

tion of removal, adding 8 U.S.C. § 1229a(c)(4).5 See Pub. L.

No. 109-13, § 101(d), 119 Stat. 304. These amendments

impose on the alien the burden of proving eligibility for can-

cellation of removal, including proving that the alien was not

U.S.C. § 801 et seq., which makes it unlawful to “manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute, or dispense,

a controlled substance,” 21 U.S.C. § 841(a), and imposes a maximum term

of imprisonment of at least twenty years when the violation involves a

Schedule II substance such as cocaine, see id. § 841(b)(1)(C). See also 18

U.S.C. § 3559(a) (classifying as felonies offenses in which the maximum

term of imprisonment is more than one year).

5

8 U.S.C. § 1229a(c)(4) states, in pertinent part:

(4) Applications for relief from removal

(A) In general

An alien applying for relief or protection from removal has the

burden of proof to establish that the alien—

(i) satisfies the applicable eligibility requirements; and

(ii) with respect to any form of relief that is granted in the exer-

cise of discretion, that the alien merits a favorable exercise of dis-

cretion.

(B) Sustaining burden

The applicant must comply with the applicable requirements to

submit information or documentation in support of the appli-

cant’s application for relief or protection as provided by law or

by regulation or in the instructions for the application form. In

evaluating the testimony of the applicant or other witness in sup-

port of the application, the immigration judge will determine

whether or not the testimony is credible, is persuasive, and refers

to specific facts sufficient to demonstrate that the applicant has

satisfied the applicant’s burden of proof. In determining whether

the applicant has met such burden, the immigration judge shall

weigh the credible testimony along with other evidence of record.

Where the immigration judge determines that the applicant

should provide evidence which corroborates otherwise credible

testimony, such evidence must be provided unless the applicant

demonstrates that the applicant does not have the evidence and

cannot reasonably obtain the evidence.

YOUNG v. HOLDER 11305

convicted of a drug trafficking crime that constitutes an

aggravated felony. See 8 U.S.C. § 1229a(c)(4)(A) (“An alien

applying for relief or protection from removal has the burden

of proof to establish that the alien—(i) satisfies the applicable

eligibility requirements.”); see also 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.”).

The INA grants an alien in removal proceedings the right

“to present evidence on the alien’s own behalf.” 8 U.S.C.

§ 1229a(b)(4)(B). The REAL ID Act amendments further

delineated the type of evidence that an alien may or must pro-

duce in order to carry the alien’s burden of proving eligibility

for cancellation of removal. See id. § 1229a(c)(4)(B). Section

1229a(c)(4)(B) allows and even requires the alien to introduce

a wide range of “information” as well as documents to estab-

lish the nature of a prior conviction. Among other things, the

statute requires the alien to “submit information or documen-

tation . . . as provided by the instructions for the application

form” for cancellation of removal (EOIR-42B). Id. The

EOIR-42B application requires the applicant to “fully and

accurately answer all questions,” to provide responses “as

detailed and complete as possible,” and to attach “any docu-

ments that demonstrate your eligibility for cancellation of

removal,” including documents “which reflect” convictions.

EOIR-42B, available at http://www.justice.gov/eoir/

eoirforms/eoir42b.pdf. Further, the application requires the

applicant to attest to whether the alien has ever been con-

victed of any “felony, misdemeanor, or breach of any public

law or ordinance” and to give a “brief description of each

offense, including the name and location of the offense, date

of conviction, any penalty imposed, any sentence imposed,

and the time actually served.” Id. By statute, the IJ is to con-

sider all such information in determining the alien’s eligibility

for cancellation of removal. See 8 U.S.C. § 1229a(c)(4)(B)

(“In determining whether the applicant has met [the] burden,

11306 YOUNG v. HOLDER

the immigration judge shall weigh the credible testimony

along with other evidence of record.”). The statute also con-

templates that the alien may testify at the immigration pro-

ceedings, and it allows the IJ to require the applicant to

“provide evidence which corroborates otherwise credible tes-

timony.” Id. Providing such corroborative evidence is excused

only if “the applicant demonstrates that the applicant does not

have the evidence and cannot reasonably obtain the evi-

dence.” Id.

Accordingly, the plain language of the statute requires the

alien to carry the burden of proving eligibility for cancellation

of removal, which includes establishing that the alien had not

been convicted of an aggravated felony. The statute, however,

also gives the alien the correlative right to introduce a full

range of evidence to carry this burden.

B

Under this cancellation of removal framework, Young had

the burden to prove (among other things) that he had not been

convicted of any aggravated felony. 8 U.S.C. § 1229a(c)(4);

see also § 1229b(a)(3). Specifically, Young’s record of con-

viction establishes that he was convicted for violating Califor-

nia Health & Safety Code § 11352(a). At least some ways of

committing that offense qualify as aggravated felonies. Under

the framework set out in 8 U.S.C. § 1229a, in order to carry

his burden of proving that his conviction was not for a generic

federal drug trafficking offense, Young must establish by a

preponderance of the evidence that his conviction was for

offering to sell cocaine, rather than selling it.

This leads to our central inquiry here: how should a court

determine whether an alien has carried the burden of proving

that a state conviction does not constitute an aggravated fel-

ony for purposes of the INA?

The Supreme Court originally addressed the issue of how

to compare state convictions to generic federal offenses in the

YOUNG v. HOLDER 11307

context of criminal law. In Taylor v. United States, the

Supreme Court considered the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), which provides that a defendant

is subject to a sentence enhancement if the defendant had

three prior convictions for certain generic federal felonies.

495 U.S. 575, 578 (1990). The Supreme Court developed an

analytic tool, now commonly referred to as the Taylor cate-

gorical approach, for determining if a state conviction quali-

fied as a listed federal felony for purposes of ACCA. Under

the categorical approach, a court must first derive from vari-

ous sources the elements of the generic federal offense. See

id. at 598-99. Next, the court must make a legal assessment

as to whether the state statute of conviction is a categorical

match to the generic federal offense. See id. at 599. This

means that the court first compares the state statute to the

generic federal offense to determine if (1) the state has

adopted the generic federal definition or (2) the state statute

criminalizes less conduct than does the generic federal

offense. If so, “the conviction necessarily implies that the

defendant has been found guilty of all the elements of [the

generic offense].” Id.

If, on the other hand, the state statute criminalizes more

conduct than is included in the generic federal crime, a court

may use a modified categorical approach in making its legal

assessment of whether the defendant had necessarily been

found guilty of all the elements of the generic offense. See

United States v. Aguila-Montes de Oca, 655 F.3d 915, 920

(9th Cir. 2011) (en banc). In other words, when a state statute

explicitly or implicitly criminalizes several different ways to

commit an offense, only some of which are included in the

generic federal crime, a court may consider the particular acts

the defendant committed in order to determine “which statu-

tory phrase . . . covered a prior conviction.” Nijhawan v.

Holder, 557 U.S. 29, 41 (2009); see also Aguila-Montes de

Oca, 655 F.3d at 924-25, 937-38 (stating that if the record of

conviction establishes that the factfinder necessarily deter-

mined that the defendant satisfied an element of an offense

11308 YOUNG v. HOLDER

through (for example) use of a particular weapon, “then the

conviction ‘necessarily rested’ on this fact”). The court’s

inquiry is limited to determining the crime for which the

defendant was necessarily convicted, not whether the defen-

dant’s underlying conduct could have been charged as a

generic federal offense. See Carachuri-Rosendo v. Holder,

130 S. Ct. 2577, 2586 (2010); see also Aguila-Montes de Oca,

655 F.3d at 928 (“[I]t does not matter what acts the defendant

committed; rather, the relevant question is what he was con-

victed of.”).

Although the Taylor categorical approach and the modified

categorical approach arose in the criminal context, the

Supreme Court has also used these approaches in removal

proceedings under § 1227(a)(2)(A)(iii) to determine whether

an alien’s prior conviction constitutes an “aggravated felony”

as defined in § 1101(a)(43). In considering whether an alien’s

conviction for tax fraud qualified as an aggravated felony for

purposes of deportability under § 1227(a)(2)(A)(iii), for

instance, the Court clarified that it was using a “categorical

approach by looking to the statute defining the crime of con-

viction, rather than to the specific facts underlying the crime.”

See Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012); see

generally Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)

(assuming without deciding that the approach set forth in Tay-

lor applied to determining whether an alien had committed an

aggravated felony for analyzing removability under

§ 1227(a)(2)(A)).

In light of this legal framework, the method for analyzing

Young’s claim that he carried his burden of proving that his

state conviction did not constitute an aggravated felony for

purposes of the INA seems reasonably straightforward. Sec-

tion 11352(a), the state statute of conviction in this case,

criminalizes a list of offenses (such as selling, furnishing,

administering, and giving away designated controlled sub-

stances) that constitute aggravated felonies for purposes of

§ 1227(a)(2)(B)(i)), as well as a list of offenses (such as offer-

YOUNG v. HOLDER 11309

ing to sell, furnish, administer, and give away those controlled

substances) that do not. Accordingly, because section

11352(a) criminalizes more conduct than is included in the

generic federal crime, a conviction under this section is not

categorically an aggravated felony. Nevertheless, if Young’s

conviction necessarily rested on conduct (such as sale of

cocaine) that would constitute an aggravated felony under

§ 1227(a)(2)(B)(i), he would still be ineligible for cancellation

of removal.

At the immigration hearing, the government produced doc-

uments showing that Young’s plea of guilty was to an indict-

ment that listed the offenses in the conjunctive, including

offenses that would qualify as aggravated felonies as well as

those that would not. The IJ told Young that “one of your ele-

ments that you have to prove to show that you’re eligible for

cancellation of removal is that you do not have any aggra-

vated felony convictions” and invited him to produce a state

criminal court document showing that his felony was not an

aggravated felony. As the hearing transcript shows, Young

responded, “I pled guilty to one count of sale. I didn’t ple[a]d

guilty to trafficking or possession.” Thus the IJ properly

invited Young, as § 1229a(c)(4)(B) required, to introduce evi-

dence to show that he had not been convicted of an aggra-

vated felony. Young responded by testifying under oath that

he had in fact pleaded guilty to sale of narcotics, which was

an aggravated felony.

The BIA noted that Young had the burden to establish his

eligibility for relief, and that he had submitted documents

showing a request to the state criminal court for records that

might arguably have had the potential to assist him in his

claim, but the record did not show that he had received such

records or sought to submit them in his proceedings before the

IJ. The BIA recognized that Ninth Circuit law established the

proposition that Young’s own sworn admission that he had

committed an aggravated felony could not be considered.

Barred from the sensible course of relying on Young’s sworn

11310 YOUNG v. HOLDER

statements, the BIA followed the more dubious path of treat-

ing Young’s plea to a charge including both an aggravated

and a non-aggravated felony as a plea to both. Because the

evidentiary limitations imposed on the immigration court

were erroneous, I would not reach Young’s argument that

pleading guilty to Count 1, which listed the offense conduct

of § 11352(a) in the conjunctive, did not constitute a guilty

plea to every offense listed in the indictment.

Because “a judicial judgment cannot be made to do service

for an administrative judgment,” SEC v. Chenery Corp., 318

U.S. 80, 88 (1943), we should remand to allow such addi-

tional development of the record as the BIA may find neces-

sary, so that it may have the first opportunity to determine

whether a preponderance of the evidence proves that Young

has not been convicted of an aggravated felony. On remand,

the BIA should not be required to disregard Young’s own tes-

timony under oath that his conviction was for selling narcot-

ics. The BIA ought to be able to decide in the first instance

whether to credit Young’s admission that he had committed

an aggravated felony, or conceivably such additional docu-

ments or testimony as he may produce to show that his admis-

sion was mistaken.

II

But the majority of my colleagues have rejected the sim-

plicity and clarity of this approach for a single reason: they

believe that an alien may not submit the full range of evidence

allowed by § 1229a(c)(4)(B) when it comes to proving that a

conviction was not an aggravated felony. In the ACCA con-

text, the Supreme Court imposed strict evidentiary limitations,

allowing courts conducting a modified categorical inquiry to

consider only a “narrow and defined range of documents—the

indictment, jury instructions, judicial findings, plea agree-

ments, plea colloquies, and the like.” Aguila-Montes de Oca,

655 F.3d at 938.6 Judges Graber and Fletcher believe that

6

The Supreme Court first defined this range of documents in Shepard

v. United States, 544 U.S. 13, 16 (2005). We have further expanded the

YOUNG v. HOLDER 11311

these evidentiary limitations apply here and trump the statu-

tory language of the INA.

Although both Judges Graber and Fletcher would ignore

the statute when it authorizes the IJ to consider a broad range

of evidence (and instead impose the ACCA evidentiary limi-

tations), they diverge as to the next step. Despite bypassing

the statute on the evidentiary issue, Judge Graber would

return to the statutory language when it requires placing the

burden of proof on the alien. See § 1229a(c)(4)(A). This

approach would require the alien to attempt to prove the

nature of a prior conviction without recourse to the alien’s

own testimony or other probative evidence. Judge Fletcher, on

the other hand, would avoid the patent unfairness of Judge

Graber’s approach by placing the burden of proof on the gov-

ernment, thus ignoring the statutory language on both points.

As explained below, both of these approaches are wrong.

Rather than taking the convoluted approach the en banc

majority takes today, we should answer the question before us

merely by applying the plain language of the statute.

A

The en banc majority goes wrong in erroneously assuming

that we must impose the ACCA evidentiary limitations in the

immigration context. Neither Congress nor the Supreme Court

has required us to do so. To the contrary, the Court derived

the ACCA evidentiary limitations from its statutory interpre-

tation of ACCA, which the Court read as allowing “only a

restricted look beyond the record of conviction.” Shepard,

544 U.S. at 23. In reaching this conclusion, the Court indi-

list of judicially cognizable documents in United States v. Snellenberger,

548 F.3d 699 (9th Cir. 2008) (en banc), and other decisions. The complete

set of judicially cognizable documents is sometimes referred to as “Shep-

ard documents.” See, e.g., Aguila-Montes de Oca, 655 F.3d at 935.

11312 YOUNG v. HOLDER

cated that it would be implausible to interpret ACCA as

requiring a court to engage in an adversarial process, involv-

ing witness testimony and review of prior trial transcripts, in

order to determine conduct underlying a prior conviction.

Taylor, 495 U.S. at 601-02. Moreover, such mini-trials are

potentially susceptible to a constitutional challenge as abridg-

ing the right to a jury trial. Id. at 601. As a plurality of the

Court later explained in more specific terms, “allowing a

broader evidentiary enquiry” might permit the sentencing

court to make “disputed finding[s] of fact,” thus possibly con-

flicting with the rule enunciated in Apprendi v. New Jersey

that a jury must make a finding “of any disputed fact essential

to increase the ceiling of a potential sentence.” Shepard, 544

U.S. at 24-25 (plurality opinion) (citing Apprendi v. New Jer-

sey, 530 U.S. 466, 490 (2000)).

The Court has been sensitive, however, to the different lan-

guage and purpose of the INA as compared to ACCA, and

thus it has not imposed the strict ACCA evidentiary limita-

tions in every immigration context. See, e.g., Nijhawan, 557

U.S. at 41-42. In Nijhawan, the Court considered whether an

alien’s convictions for conspiracy to commit mail fraud, wire

fraud, bank fraud, and money laundering constituted aggra-

vated felonies under the INA. See id. at 32. The INA defines

“aggravated felony” as including an offense that “involves

fraud or deceit in which the loss to the victim or victims

exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). Although

the alien had stipulated that the loss in his case exceeded $100

million and the restitution order was for $683 million, the

statute of conviction itself was silent as to loss. See Nijhawan,

557 U.S. at 32.

Rather than mechanically applying the modified categorical

approach exactly as it was developed in the criminal context,

the Court considered both the language of the INA and the

context of the proceedings at issue. After carefully construing

the INA’s “aggravated felony” statute, 8 U.S.C.

§ 1101(a)(43), as well as the specific language of

YOUNG v. HOLDER 11313

§ 1101(a)(43)(M)(i), the Court determined that the INA dif-

fered from ACCA’s provisions in material ways. See Nijha-

wan, 557 U.S. at 36-40. In light of these differences, the Court

concluded that “Congress did not intend subparagraph

(M)(i)’s monetary threshold to be applied categorically, i.e.,

to only those fraud and deceit crimes generically defined to

include that threshold,” but instead intended the monetary

threshold to apply “to the specific circumstances surrounding

an offender’s commission of a fraud and deceit crime on a

specific occasion.” Id. at 40.

After deciding that the statutory language required the

immigration court to evaluate the specific circumstances of an

offense, the Court rejected the alien’s argument that “reasons

of fairness” should limit the court’s consideration to the Shep-

ard documents alone. Id. at 41-43. According to the alien,

“any broader examination of the prior proceedings” by the IJ

would “unfairly permit [the alien] to be deported on the basis

of circumstances that were not before judicially determined to

have been present and which he may not have had an opportu-

nity, prior to conviction, to dispute.” Id. at 41. But the Court

concluded that while “the statute foresees the use of funda-

mentally fair procedures, including procedures that give an

alien a fair opportunity to dispute a Government claim that a

prior conviction involved a fraud with the relevant loss to vic-

tims,” fairness did not require the ACCA evidentiary limita-

tions that the alien proposed. Id. at 41. Instead, it expressed

reliance on immigration judges’ ability to “ascertain the

nature of a prior conviction” without relitigating the convic-

tion itself. Id. at 42.

Nijhawan also called into question whether ACCA eviden-

tiary limitations necessary in the criminal context (where

courts must protect the defendant’s constitutional rights and

the government must prove its case beyond a reasonable

doubt) apply at all in the civil deportation context (which does

not implicate these constitutional rights and in which the stan-

dard of proof is much lower). See id. at 41-42. The Court

11314 YOUNG v. HOLDER

noted that, unlike in the criminal context of Taylor, “a depor-

tation proceeding is a civil proceeding in which the Govern-

ment does not have to prove its claim ‘beyond a reasonable

doubt.’ ” Id. at 42. Accordingly, after reviewing the statutory

language and the particular context at issue, the Court allowed

the immigration court to rely on the defendant’s sentencing

stipulation and the trial court’s restitution order, non-Shepard

documents that constituted clear and convincing evidence that

the loss amount was more than $10,000. See id. at 42-43.

Nijhawan’s analytic approach thus strongly suggests that

we should reconsider the assumption that the ACCA evidenti-

ary limitations are applicable in every context. Rather, when

operating outside a criminal proceeding, a court must consider

whether it is necessary to adapt the Taylor approach to fit the

specific language of the statute at issue and the civil context

of an immigration proceeding.

B

The considered analytic approach of Nijhawan is appropri-

ate here. Although the Supreme Court has not yet addressed

whether the ACCA evidentiary limitations are appropriate in

the cancellation of removal context under § 1229b(a)(3), the

specific statutory language of the cancellation of removal pro-

visions, see 8 U.S.C. § 1229a(c)(4), as well as the civil con-

text of immigration proceedings, weigh against applying the

ACCA evidentiary limitations here.

We should begin our analysis with the statutory language.

As described earlier, § 1229a(c)(4)(B) expressly delineates

the type of evidence that an alien may or must produce in

order to carry the alien’s burden of proving eligibility for can-

cellation of removal. Rather than limiting the alien to a nar-

row range of Shepard documents, this section allows and even

requires the alien to introduce a wide range of documents to

establish the nature of a prior conviction. In making this

determination, § 1229a(c)(4) directs the IJ to consider a range

YOUNG v. HOLDER 11315

of documents, the testimony of the alien and any witnesses,

as well as ask for additional corroboration of this testimony

as needed.7 See supra at 11305-06.

The cancellation of removal context further supports such

a reading. The statutory scheme governing cancellation of

removal differs from ACCA in at least one important respect:

the alien has the burden of proving eligibility for this form of

relief. See 8 U.S.C. § 1229a(c)(4)(A); see also 8 C.F.R.

§ 1240.8(d). Unlike the criminal context or the removability

determination, in both of which the government bears the bur-

den of proving affirmatively that the alien’s conviction does

qualify for the enhancement at issue, Congress has placed the

burden of proving eligibility for cancellation of removal

squarely on the alien, who must prove that the conviction at

issue is not an aggravated felony. Authorizing the alien to

introduce and the IJ to consider a wide range of information,

including testimony, gives the alien a reasonable opportunity

to carry this burden. See 8 U.S.C. § 1229a(c)(4)(A), (B).

Accordingly, we should hold that the ACCA evidentiary

limitations do not apply in the cancellation of removal con-

text, and thus the alien is not limited to the Shepard docu-

ments in meeting the burden of showing that the alien has not

been convicted of an aggravated felony. This means that

Young should have the opportunity of introducing the evi-

dence permitted under the INA to establish that his prior con-

viction was not a drug trafficking offense.8 See supra at

11309-10.

7

The assertion in Judge Graber’s opinion that § 1229a(c)(4)(B) “merely

allows the IJ to require corroborative evidence for testimony presented by

the applicant,” Graber opinion at 11286-87 (emphasis in original), is thus

belied by the plain language of the statute itself.

8

Judge Graber’s statement that such evidence “is largely irrelevant to

the question that matters for the modified categorical approach,” Graber

op. at 11287, misunderstands the “question that matters”: whether Young

had been convicted of an offense that constituted an aggravated felony.

There is no reason why relevant non-Shepard evidence, such as Young’s

sworn testimony regarding what he was convicted of, is “[e]xtraneous” to

answering this question. Graber op. at 11287.

11316 YOUNG v. HOLDER

C

Young, as well as Judges Graber and Fletcher, offer a num-

ber of reasons for rejecting this approach and holding instead

that the ACCA evidentiary limitations do apply in the cancel-

lation of removal context. But these arguments do not with-

stand scrutiny.

First, Judge Graber asserts that despite the clear import of

Nijhawan, its approach is not applicable here because

§ 1229a(c)(4) does not contain the language present in

§ 1101(a)(43)(M)(i), which indicated that Congress intended

to apply a “ ‘circumstance-specific’ inquiry.” Graber op. at

11285. Her opinion contends that Nijhawan relaxed the

ACCA evidentiary limitations only in this very limited cir-

cumstance and only because neither a categorical nor modi-

fied categorical analysis was appropriate. Graber op. at

11285-86.

This effort to limit Nijhawan to the narrowest possible

reading of its facts misses the key point: Nijhawan establishes

that the ACCA evidentiary limitations do not apply when

Congress indicates otherwise in the text of the governing stat-

ute. See 557 U.S. at 37-38. Indeed, Judge Graber’s opinion

seems to overlook the entire section of Nijhawan where the

Court discussed and rejected the petitioner’s broader argu-

ment that, “for reasons of fairness,” the ACCA evidentiary

limitations should be applied notwithstanding the statute. Id.

at 41-43.

Further, this cramped reading of Nijhawan overlooks the

fact that the key policy reason suggested by the Supreme

Court for imposing evidentiary limitations in the ACCA con-

text, namely concerns regarding the risk of mini-trials to reli-

tigate the criminal case, see, e.g., Taylor, 495 U.S. at 601, do

not arise in the civil setting of a cancellation of removal pro-

ceeding, where the alien need only prove by a preponderance

of the evidence that the prior conviction was not an “aggra-

YOUNG v. HOLDER 11317

vated felony,” see 8 C.F.R. § 1240.8(d). The IJ will not be

adjudicating guilt or innocence, as guilt has already been

determined in the prior criminal proceedings. Rather, the IJ,

who is well-positioned to consider testimonial and documen-

tary evidence, is required by statute to adjudicate only the

nature of the conviction and is thus likely to come to a better

conclusion by taking in more information and considering

credibility and corroboration of testimony. See In re Silva-

Trevino, 24 I. & N. Dec. 687, 702-03 (BIA 2008)

(“Immigration judges are well versed in case management,

and . . . the answer to a single question . . . may reveal a criti-

cal piece of information that is not in the record of conviction

and that would ensure correct application of the [governing

statute].”). Congress has demonstrated its confidence in the

IJ’s competence to make such decisions by designating the IJ

as the central arbiter in this statutory scheme and even insulat-

ing the exercise of that authority from judicial review. See 8

U.S.C. § 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction

to review” the granting of discretionary relief, including can-

cellation of removal).

Moreover, all these arguments in favor of applying the

ACCA evidentiary limitations in the cancellation of removal

setting are undercut by the flaw highlighted in Judge Fletch-

er’s dissent: such evidentiary limitations, coupled with the

statutory language putting the burden of proof on the alien,

reach an unfair result that Congress could not have intended.

We have previously addressed this inequity, as Judge

Fletcher would have us do here, by retaining the ACCA evi-

dentiary limitations and effectively eliminating the alien’s

burden of proof. See Sandoval-Lua v. Gonzales, 499 F.3d

1121 (9th Cir. 2007). In Sandoval-Lua, which required us to

apply pre-REAL ID Act law, we considered an alien’s claim

that the BIA erred in denying his application for cancellation

of removal because his state conviction did not constitute an

aggravated felony. See id. at 1123, 1126-27. Applying the

Taylor categorical approach, Sandoval-Lua agreed that the

11318 YOUNG v. HOLDER

state crime of conviction was categorically broader than the

applicable definition of an aggravated felony. See id. at 1128.

Turning to the modified categorical approach, the court lim-

ited its analysis to the Shepard documents, which were incon-

clusive as to whether the alien had been convicted of a crime

that qualified as an aggravated felony. See id. at 1129.

But the Sandoval-Lua court then recognized the potential

unfairness inherent in making an alien prove the nature of

prior state crimes while at the same time limiting the alien to

the Shepard documents to try to meet that burden. To avoid

this problem, Sandoval-Lua concluded that “an inconclusive

record of conviction is sufficient to demonstrate an alien peti-

tioner was not ‘necessarily’ convicted of the generic crime.”

Id. at 1132.

But this holding effectively imposed the burden of proof on

the government, which is contrary to § 1229a(c)(4)(A).9 In

order for a party to meet the preponderance of the evidence

standard, the party must show that “the existence of a fact is

more probable than its nonexistence.” Kennedy v. S. Cal. Edi-

son Co., 268 F.3d 763, 770 (9th Cir. 2001) (quoting Concrete

Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension

Trust for S. Cal., 508 U.S. 602, 622 (1993)) (internal quota-

tion marks omitted)). Under Sandoval-Lua, though, the alien

need not meet this burden: it is the government that must

show it is more probable than not that the alien was convicted

of an aggravated felony.10 Moreover, Sandoval-Lua’s

9

Because Sandoval-Lua considered an application for cancellation of

removal which was filed prior to the effective date of the REAL ID Act,

the panel explicitly declined to consider the effect of § 1229a(c)(4). 499

F.3d at 1132 n.10.

10

Given the language added by the REAL ID Act, it is clear that Con-

gress did not intend to relieve the alien of the burden of proof. Sandoval-

Lua has been rejected by two circuits as contrary to the plain language of

the cancellation of removal statute. See Salem v. Holder, 647 F.3d 111,

119 (4th Cir. 2011) (“With respect for our colleagues on the . . . Ninth Cir-

YOUNG v. HOLDER 11319

approach of shifting the burden by implication has the per-

verse effect of encouraging aliens to conceal relevant evi-

dence. See Rosas-Castaneda v. Holder, 655 F.3d 875, 880,

884-85 (9th Cir. 2011) (holding that an alien could satisfy the

burden of proving eligibility for cancellation by refusing to

provide documents that would prove ineligibility for relief).

Judge Fletcher claims that Sandoval-Lua “plac[es] the bur-

den of proof squarely on the applicant for cancellation of

removal.” Fletcher dissent at 11301. This is true only if we

redefine what it means to carry a burden of proof so that it

means not carrying it. Indeed, Judge Fletcher effectively

admits as much, arguing that the burden should be on the gov-

ernment because it is “in the better position to obtain the evi-

dence,” Fletcher dissent at 11299, and citing cases involving

“[g]eneral burden-shifting principles,” United States v.

Cortez-Rivera, 454 F.3d 1038, 1041 (9th Cir. 2006). But such

practical considerations and general principles cannot trump

the plain language of a statute that clearly directs otherwise.

Sandoval-Lua (and Judge Fletcher) go to great lengths to

avoid the unfairness of saddling an alien with both the burden

of proof and evidentiary limitations. See Fletcher dissent at

11298-11301. I agree that Congress could not have intended

this result. But it is equally improper to ignore the plain lan-

guage of the statute, which puts the burden of proof on the

alien. The solution, of course, is to apply the statute as it is

written, applying both § 1229a(c)(4)(B), which sets forth a

cuit[ ], we believe that . . . Sandoval-Lua elide[s] the clear statutory lan-

guage of the INA establishing the noncitizen’s burden in relief-from-

removal proceedings.”); Garcia v. Holder, 584 F.3d 1288, 1290 (10th Cir.

2009) (“We agree with the BIA that [the Sandoval-Lua] approach effec-

tively nullifies the statutorily prescribed burden of proof.”). But see Marti-

nez v. Mukasey, 551 F.3d 113, 121 (2d Cir. 2008) (approving a

“straightforward application of the categorical approach” to cancellation

without any consideration of the statutory language).

11320 YOUNG v. HOLDER

broad range of permissible evidence, and § 1229a(c)(4)(A),

which imposes the burden of proof on the alien.

III

In the end, the analysis should be simple. The plain lan-

guage of § 1229a(c)(4)(B) requires the alien to carry the bur-

den of proving eligibility for cancellation of removal,

including proving that the alien had not previously been con-

victed of an aggravated felony. Although a court must use the

Supreme Court’s categorical and modified categorical tool to

determine if the prior conviction qualifies as an aggravated

felony, this tool does not impose evidentiary limitations

where the statute says otherwise, as it does here.

In arguing otherwise, Judge Fletcher’s dissent would adopt

the approach first set forth in Sandoval-Lua, which imposes

the evidentiary limitation set forth in Shepard, but shifts the

burden of proof to the government. As made clear above, both

of these interpretations are contrary to the statute.

But at least Judge Fletcher’s opinion has the virtue of being

logical, even if it is inconsistent with the statutory language.

It is Judge Graber’s opinion that reaches a result that could

never have been intended by Congress. Contrary to the opin-

ion, the result it reaches is “absurd.” Cf. Graber opinion at

11296. Judge Graber’s approach would give the alien the stat-

utory burden of proof, but ignore the statute’s evidentiary pro-

visions and unfairly impose the strict evidentiary limitations

of the ACCA enhancement analysis. Under this framework,

an alien who has not been convicted of an aggravated felony

is subject to the vagaries of state and local court recordkeep-

ing systems and has only the hope that the relevant documents

can be found (assuming they exist). If the limited documents

allowed under Shepard do not resolve the question, the alien

has no recourse. A fair reading of the applicable statutes

establishes that Congress did not intend such an inequitable

result. Cf. Nijhawan, 557 U.S. at 41 (assuming that Congress

YOUNG v. HOLDER 11321

intended the use of “fundamentally fair procedures, including

procedures that give an alien a fair opportunity to dispute a

Government claim that a prior conviction” constituted an

aggravated felony).

The oddities of our division have now saddled us with a

ruling with which nine judges disagree and which departs

from the language of the statute in a way that most seriously

disadvantages the alien. I do not join this result.