Marinelarena v. Sessions, No. 14-72003 (9th Cir. 2017)
Annotate this CasePetitioner sought review of the BIA's decision finding her ineligible for cancellation of removal based on her failure to meet her burden of proof of showing that her conviction for conspiring to sell and transport a controlled substance, in violation of California Penal Code 182(a)(1), was not for a disqualifying controlled substance. The Ninth Circuit held that the conspiracy statute under which petitioner was convicted was overbroad but divisible, petitioner failed to carry her burden of proof to demonstrate that her conviction did not involve a federally controlled substance, and she had failed to exhaust the argument that expungement of her conviction erased its immigration consequences. Accordingly, the panel denied the petition in part and dismissed in part.
Court Description: Immigration. The panel denied in part and dismissed in part Aracely Marinelarena’s petition for review of the Board of Immigration Appeals’ decision finding her ineligible for cancellation of removal because she had failed to meet her burden of proof to show that her conviction was not for a disqualifying controlled substance offense. The panel held that the conspiracy statute under which Marinelarena was convicted, California Penal Code § 182(a)(1), is overbroad but divisible as to the target crime. The panel further held that the target crime, sale and transport of a controlled substance under California Health and Safety Code § 11352, is overbroad and divisible as to the specific controlled substance. Accordingly, the panel applied the modified categorical approach and concluded that the record was inconclusive because Marinelarena’s guilty plea could have rested on an overt act that did not relate to heroin. Addressing the effect of the inconclusive record, the panel further held that Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), which held that a petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, remains good law because it is not irreconcilable with the later Supreme Court cases of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013). MARINELARENA V. SESSIONS 3 Therefore, the panel concluded that Marinelarena is ineligible for cancellation because, with respect to eligibility for relief, she bears the burden of proof to show that her conviction did not relate to a controlled substance, and she could not meet this burden on an inconclusive record. The panel also concluded that it lacked jurisdiction to consider Marinelarena’s unexhausted claim that the expungement of her conviction removes it from the definition of conviction under the immigration laws. Dissenting, Judge Tashima disagreed with the majority’s conclusion that Moncrieffe does not abrogate Young, concluding that the decisions are irreconcilable. Judge Tashima would grant the petition for review.
The court issued a subsequent related opinion or order on March 29, 2018.
The court issued a subsequent related opinion or order on July 18, 2019.
The court issued a subsequent related opinion or order on April 16, 2021.
The court issued a subsequent related opinion or order on July 26, 2021.
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