Lozano-Arredondo v. Sessions, No. 11-72422 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit granted the petition for review of the BIA's decision concluding that petitioner was ineligible for cancellation of removal because his conviction for petit theft in Idaho was a crime involving moral turpitude. The panel held that the record of conviction was inadequate to determine whether petitioner was convicted of a crime involving moral turpitude because the record did not identify any particular statute of conviction and Idaho's petit theft statute was overbroad under the categorical approach. Under the modified categorical approach, the record contained insufficient information to determine whether petitioner was convicted under one of the Idaho petit theft provisions meeting the generic federal offense. The panel also held that the BIA erred by deciding at Chevron step one that an "offense under" 8 U.S.C. 1227(a)(2)(A)(i) did not include the within-five-years element. The panel remanded for further proceedings.
Court Description: Immigration. The panel granted Lozano-Arredondo’s petition for review of the Board of Immigration Appeals’ decision concluding he was ineligible for cancellation of removal because his conviction for petit theft in Idaho was a crime involving moral turpitude. First, the panel held that Lozano-Arredondo’s record of conviction is inadequate to determine if he was convicted of a crime involving moral turpitude because the record does not identify any particular statute of conviction, the Idaho petit theft statute is not categorically a crime involving moral turpitude, and the record contained insufficient information to apply the modified categorical approach. The panel noted that the effect of this inconclusive record is unclear due to the open question of whether Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en banc), remains good law after the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). However, the panel declined to reach the Young-Moncrieffe issue because another panel of this court has priority to address it. Instead – because the panel was remanding on another ground – the panel also remanded the modified categorical approach question to the Board, stating that once the Young-Moncrieffe issue is resolved by this court, the Board can apply that law to Lozano-Arredondo’s conviction. LOZANO-ARREDONDO V. SESSIONS 3 Second, the panel remanded to the Board the issue of whether Lozano-Arredondo had been convicted of an “offense under” 8 U.S.C. § 1227(a)(2)(A)(i), which provides that an alien “who is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, . . . for which a sentence of one year or longer may be imposed, is deportable.” The panel declined to defer to the Board’s published decision in In re Cortez Canales, 25 I. & N. Dec. 301 (BIA 2010), which held that § 1227(a)(2)(A)(i) applies regardless of when the offense was committed, and is not limited to offenses committed within five years of admission. The panel remanded for the Board to reconsider its interpretation of the phrase “offense under” in the cancellation of removal statute.
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