Marinelarena v. Sessions

869 F.3d 780

Aracely MARINELARENA, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-72003

United States Court of Appeals, Ninth Circuit.

Argued April 6, 2016

Resubmitted August 4, 2017 Pasadena, California

Filed August 23, 2017

Andrew Knapp (argued), Supervising Attorney; Laura Free (argued), Isis Miranda (argued), Lilit Arabyan, and Eric M. Sowatsky, Certified Law Students; Southwestern Law School, Los Angeles, California; for Petitioner.

Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior Litigation Counsel; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Brian Goldman (argued), Orrick Herrington & Sutcliffe LLP, San Francisco, California; Manuel Vargas and Andrew Wachtenheim, Immigrant Defense Project, New York, New York; Jayashri Srikantiah and Lisa Weissman-Ward, Immigrants' Rights Clinic, Mills Legal Clinic, Stanford Law School, Stanford, California; for Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, Asian Americans Advancing Justice-Asian Law Caucus, Community Legal Services in East Palo Alto, Detention Watch Network, Florence Immigrant and Refugee Rights Project, Heartland Alliance's National Immigrant Justice Center, Immigrant Legal Resource Center, National Immigration Law Center, National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Public Counsel, and U.C. Davis Immigration Law Clinic.

Before: A. Wallace Tashima, Barry G. Silverman, and Susan P. Graber, Circuit Judges.

Dissent by Judge Tashima

OPINION

GRABER, Circuit Judge:

Petitioner Aracely Marinelarena, a native and citizen of Mexico, stands convicted of conspiring to sell and transport a controlled substance in violation of California Penal Code section 182(a)(1). After the federal government initiated removal proceedings, she conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b). The immigration judge ("IJ") denied relief. The Board of Immigration Appeals ("BIA") held that Petitioner had fallen short of meeting her burden of proof, by failing to show that her conviction was not for a disqualifying controlled substance offense, and dismissed the appeal. We hold that the conspiracy statute under which Petitioner was convicted is overbroad but divisible, that Petitioner failed to carry her burden of proof to demonstrate that her conviction did not involve a federally controlled substance, and that she has failed to exhaust the argument that expungement of her conviction erases its immigration consequences. Accordingly, we deny the petition for review in part and dismiss it in part.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner first entered the United States in 1992 without admission or inspection. In 2000, she was convicted of false personation of a public officer, in violation of California Penal Code section 529. In 2006, the State of California filed a criminal complaint against Petitioner that charged her with one count of conspiring to commit a felony, in violation of California Penal Code section 182(a)(1). Specifically, it charged Petitioner with conspiring to sell and transport a controlled substance in violation of California Health and Safety Code section 11352. The criminal complaint alleged several overt acts in furtherance of the conspiracy, one of which—the transportation of three bags containing heroin—referred to a particular controlled substance. On March 26, 2007, pursuant to a plea of guilty, Petitioner was convicted of violating California Penal Code section 182(a)(1). The state court sentenced her to 136 days' imprisonment and three years' probation.¹

Two days later, the government served Petitioner with a notice to appear for removal proceedings. The notice charged Petitioner with removability as an alien who had remained in the United States longer than permitted, in violation of 8 U.S.C. § 1227(a)(1)(B). Petitioner conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b). Around the same time, Petitioner filed separate motions in state court to vacate her false personation and conspiracy convictions under California Penal Code section 1203.4. In 2009, California courts granted Petitioner's motions and vacated those convictions.

At a removal hearing in 2011, Petitioner argued that her conspiracy conviction did not constitute a controlled substance offense as defined by the Controlled Substances Act, 21 U.S.C. § 802, because the conviction documents do not specify the controlled substance. Petitioner also argued that she was eligible for cancellation of removal because her convictions had been vacated.

In 2012, the IJ held that Petitioner had failed to meet her burden to demonstrate eligibility for cancellation of removal and ordered her removed to Mexico. The IJ reasoned that Petitioner had failed to show that she was eligible for relief despite her convictions for false personation and conspiracy to sell and transport a controlled substance. The IJ noted that Petitioner's false personation conviction under California Penal Code section 529 appeared to qualify as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ also noted that Petitioner's conspiracy conviction under California Penal Code section 182(a)(1)"for conspiracy to distribute heroin" barred her from relief because it was a disqualifying controlled substance offense. Lastly, although both convictions had been vacated, the IJ held that, because the convictions were not vacated on the merits, they remained valid for immigration purposes.

On appeal, the BIA held that Petitioner had failed to establish that her conspiracy conviction did not qualify as a controlled substance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II). The BIA explained that, although California Health and Safety Code section 11352 is broader than the Federal Controlled Substances Act, 21 U.S.C. § 802, because the state law covers more drugs than the federal definition, Petitioner submitted no evidence identifying the controlled substance and, therefore, did not meet her burden of proof. The BIA did not reach the IJ's additional ruling that Petitioner's false personation conviction was a crime involving moral turpitude. Nor did it reach the expungement question, because Petitioner did not raise it in her briefing to the BIA.

Petitioner timely petitions for review. We also granted a motion by a group of interested entities to file a joint amicus brief.

STANDARD OF REVIEW

We review de novo questions of law and constitutional claims. Coronado v. Holder , 759 F.3d 977, 982 (9th Cir. 2014).

DISCUSSION

A. Controlled Substance Offense

To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b), a petitioner must meet the following requirements: (1) have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of application; (2) have been a person of good moral character during that period; (3) not have been convicted of, as applicable here, a controlled substance offense; and (4) show that removal would cause "exceptional and extremely unusual hardship" to a family member who is a citizen of the United States or an alien lawfully admitted for permanent residence. Our analysis concerns the third requirement—that the petitioner not have been convicted of a controlled substance offense.

To determine whether a state conviction qualifies as an offense relating to a controlled substance as defined under federal law, we employ the categorical and modified categorical approaches set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "First, we ask whether the state law is a categorical match with a federal [controlled substance] offense," looking "only to the ‘statutory definitions' of the corresponding offenses." United States v. Martinez-Lopez , No. 14-50014, 864 F.3d 1034, 1038, 2017 WL 3203552, at *3 (9th Cir. July 28, 2017) (en banc) (quoting Taylor , 495 U.S. at 600, 110 S.Ct. 2143 ). "If a state law proscribes the same amount of or less conduct than that qualifying as a federal [controlled substance] offense, then the two offenses are a categorical match." Id. (internal quotation marks omitted). That result would end our analysis.

But if the offenses are not a categorical match, we proceed to a second step, asking whether the overbroad portion of the statute of conviction is "divisible," meaning that it "sets out one or more elements of the offense in the alternative." Id. at *4 (quoting Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ). We will "consult ‘authoritative sources of state law’ to determine whether a statute contains alternative elements defining multiple crimes or alternative means by which a defendant might commit the same crime." Id. (quoting Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016) ). Elements are "those circumstances on which the jury must unanimously agree." United States v. Vega-Ortiz , 822 F.3d 1031, 1035 (9th Cir. 2016). If the statute is divisible, "then we may proceed to the third step in our analysis and apply the modified categorical approach." Martinez-Lopez , 2017 WL 3203552, at *4, 864 F.3d at 1039. Under the modified categorical approach, "we examine judicially noticeable documents of conviction ‘to determine which statutory phrase was the basis for the conviction.’ " Id. (quoting Descamps , 133 S.Ct. at 2285 ).

In short, only when a state statute is both overbroad and divisible do we employ the modified categorical approach. We do so by examining certain conviction-related documents, including "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some...