Lopez-Marroquin v. Garland

9 F.4th 1067

Ricardo A. LOPEZ-MARROQUIN, aka Ricardo Lopez, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-72922

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2020 Pasadena, California

Filed August 18, 2021

Hannah Comstock (argued), Emily Chertoff (argued), Munmeeth Kaur Soni, and Caitlin Anderson, Immigrant Defenders Law Center, Los Angeles, California; for Petitioner.

Joseph A. O'Connell (argued), Attorney; Bryan S. Beier, Senior Litigation Counsel; Cindy S. Ferrier and John W. Blakeley, Assistant Directors; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Jessica Karp Bansal and Ahilan T. Arulanantham, ACLU of Southern California, Los Angeles, California, for Amicus Curiae ACLU of Southern California.

Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and Yvette Kane,^* District Judge.

Dissent by Judge Callahan

NGUYEN, Circuit Judge:

Ricardo Lopez-Marroquin, a native and citizen of El Salvador, challenges the Board of Immigration Appeals’ ("BIA") finding that his conviction for theft of a vehicle under California Vehicle Code § 10851(a) is an aggravated felony, which renders him ineligible for certain forms of relief. We have held, and the parties do not dispute, that § 10851(a) is overbroad because it criminalizes a broader swath of conduct than the generic theft offense. See United States v. Vidal , 504 F.3d 1072, 1077 (9th Cir. 2007) (en banc) ("[W]hereas the generic theft offense encompasses only principals, accomplices, and others who incur liability on the basis of pre-offense conduct, section 10851(a) also reaches accessories after the fact."). We must therefore decide whether § 10851(a) "sets out a single (or ‘indivisible’) set of elements to define a single crime," or rather, "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016). Applying the framework described in Mathis , we hold that § 10851(a) is indivisible in its treatment of accessories after the fact. Because § 10851(a) does not categorically match the generic theft offense, a conviction under § 10851(a) is not an aggravated felony.

We previously held otherwise in Duenas-Alvarez v. Holder , 733 F.3d 812 (9th Cir. 2013), but that case is clearly irreconcilable with the Supreme Court's subsequent decision in Mathis . Accordingly, we grant Lopez-Marroquin's petition in part and deny in part.¹

BACKGROUND

Lopez-Marroquin came to the United States in the 1980s after his mother received asylum, and he became a legal permanent resident ("LPR") in the early 1990s. In October 2000, he pleaded guilty to vehicle theft in violation of California Vehicle Code § 10851(a). Twelve years later, the Department of Homeland Security served him with a Notice to Appear and charged him with removability in connection with different convictions. In 2017, Lopez-Marroquin applied for LPR cancellation of removal. He also amended his previously submitted application for asylum, withholding of removal, and relief under the Convention Against Torture.

In February 2018, the immigration judge ("IJ") determined that his § 10851(a) conviction constituted an aggravated felony. The IJ reasoned that although § 10851(a) is overbroad, it is divisible, relying on our opinion in Duenas-Alvarez , 733 F.3d 812. The IJ next determined Lopez-Marroquin's record of conviction shows he necessarily committed the offense as a principal, not as an accessory after the fact, so he committed an aggravated felony. The IJ denied Lopez-Marroquin's applications for cancellation of removal and asylum. Lopez-Marroquin appealed to the BIA, which affirmed the IJ's decision.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over final orders of removal under 8 U.S.C. § 1252. We review de novo whether a particular offense constitutes an aggravated felony under the Immigration and Nationality Act. Sareang Ye v. I.N.S. , 214 F.3d 1128, 1131 (9th Cir. 2000). Divisibility, like element identification, is reviewed de novo. Medina-Lara v. Holder , 771 F.3d 1106, 1117 (9th Cir. 2014).

DISCUSSION

I.

A lawful permanent resident is statutorily ineligible for cancellation of removal if he has been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). Similarly, a noncitizen is ineligible for asylum if he has been convicted of a particularly serious crime, 8 U.S.C. § 1158(b)(2)(A)(ii), and for purposes of asylum, an aggravated felony is automatically a particularly serious crime, 8 U.S.C. § 1158(b)(2)(B)(i). "The term ‘aggravated felony’ [includes] ... a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G).

Here, the agency applied these statutory bars to deny Lopez-Marroquin relief based on its finding that a conviction under § 10851(a) is an aggravated felony.

A. Divisibility Hinges on Whether Statutory Alternatives Are Elements or Means.

To determine whether a California Vehicle Code § 10851(a) conviction is an aggravated felony, we apply the three-step process set out in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). See Mathis , 136 S. Ct. at 2248–49. First, applying the categorical approach established by Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we compare the elements of the offense with the elements of a generic offense—"i.e., the offense as commonly understood." Sandoval v. Sessions , 866 F.3d 986, 988 (9th Cir. 2017). This step considers statutory definitions only, not the actual conduct underlying the conviction. Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ("The key, we emphasized, is elements, not facts."). When the elements of the state offense are the same as, or narrower than, those of the generic offense, the petitioner's conviction is a categorical match. Id. However, if the elements of the state offense are broader than those of the generic offense—meaning the state offense criminalizes conduct that the generic offense does not—then there is no categorical match. Mathis , 136 S. Ct. at 2248–49.

If the state statute is "overbroad," the question of divisibility arises. Lopez-Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir. 2015). A statute is divisible if it sets out elements of the offense in the alternative, effectively containing multiple possible offenses. Romero-Millan v. Barr , 958 F.3d 844, 847–48 (9th Cir. 2020). A statute is indivisible if it only lists alternative means of committing a single crime. Id. If the statute is indivisible, the inquiry ends. See Mathis , 136 S. Ct. at 2257 ; Lopez-Valencia , 798 F.3d at 868 (quoting Medina-Lara v. Holder , 771 F.3d at 1112 ("a conviction under an indivisible, overbroad statute can never serve as a predicate offense")).

Determining whether a particular statute's disjunctive phrasing sets forth alternative elements or alternative means is not always easy. See Dissent n.1. "Although we properly articulated the elements-based test before Mathis was decided, ... our prior decisions ... often put undue emphasis on the disjunctive-list rationale criticized in Mathis ." United States v. Martinez-Lopez , 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc) (citation omitted) (collecting cases). Mathis emphasized "the importance of the abstract comparison of elements" and "reiterated that the Supreme Court meant what it said" in Descamps . Id .

The Supreme Court in Mathis provided a clear framework to assist courts in analyzing a statute's divisibility. Mathis , 136 S. Ct. at 2249, 2256. Mathis instructs us to consult "authoritative sources of state law" including state court decisions that "definitively answer[ ]" the question of whether a statute contains alternative elements or means. Id. at 2256 ("When a ruling of that kind exists, a [court] need only follow what it says."). If no such decision exists, the text of the statute may also "resolve the issue." Id. For example, alternatives that carry different punishments are necessarily elements. See id. (citing Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). If "state law fails to provide clear answers," courts may take a "peek" at the record of conviction for the "sole and limited purpose of determining whether the listed items are elements of the offense." Id. at 2256–57 (alterations omitted) (quoting Rendon v. Holder , 782 F.3d 466, 473–74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh'g en banc)). If such records do not "plainly" demonstrate that the alternatives are elements rather than means, the statute is indivisible. Id.

Only in the "narrow range of cases" where an overbroad statute is divisible do we proceed to the third Descamps step, the "modified categorical approach." Id. ; Villavicencio v. Sessions , 904 F.3d 658, 664 (9th Cir. 2018). "In other words, the modified approach serves—and serves solely—as a tool to identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one (or more) of them opaque." Mathis , 136 S. Ct. at 2253.

B. California Vehicle Code § 10851(a) Is Indivisible as to Its Treatment of Accessories after the Fact.

Turning to this case, we must decide whether vehicle theft under § 10851(a) categorically matches the generic theft offense, which is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(G). The parties agree that § 10851(a) is overbroad because it extends liability to accessories after the fact. United States v. Arriaga-Pinon , 852 F.3d 1195, 1199 (9th Cir. 2017) (" Section 10851(a) does not match the elements of the generic theft offense because it applies not only to the principals and accomplices, but also to accessories after the fact.") (citing Vidal , 504 F.3d at 1074–75 ). Applying Mathis , we consider whether state authoritative sources—the statutory...