Aracely Marinelarena v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARACELY MARINELARENA, No. 14-72003
Petitioner,
Agency No.
v. A095-731-273

JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued April 6, 2016
Resubmitted August 4, 2017
Pasadena, California

Filed August 23, 2017

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

Opinion by Judge Graber;
Dissent by Judge Tashima
2 MARINELARENA V. SESSIONS

SUMMARY*

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).

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 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.

COUNSEL

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,
4 MARINELARENA V. SESSIONS

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.

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
 MARINELARENA V. SESSIONS 5

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

1
At her removal hearings, Petitioner submitted the complaint to the
IJ and admitted that she was “convicted solely of Count 1 of the
Complaint,” which alleged that she had committed “the crime of
CONSPIRACY TO COMMIT A CRIME, in violation of PENAL CODE
SECTION 182(a)(1),” specifically, conspiring “to commit the crime of
SELL AND TRANSPORT, in violation of Section 11352 of the HEALTH
AND SAFETY Code.”
6 MARINELARENA V. SESSIONS

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.
 MARINELARENA V. SESSIONS 7

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
8 MARINELARENA V. SESSIONS

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 (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, 2017 WL 3203552, at *3 (9th Cir. July 28,
2017) (en banc) (quoting Taylor, 495 U.S. at 600). “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,
133 S. Ct. 2276, 2281 (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
 MARINELARENA V. SESSIONS 9

same crime.” Id. (quoting Mathis v. United States, 136 S. Ct.
2243, 2256 (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. 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 comparable judicial
record of this information.” United States v. Leal-Vega,
680 F.3d 1160, 1168 (9th Cir. 2012) (internal quotation marks
omitted).

We agree with Petitioner that California Penal Code
section 182(a)(1) is overbroad, meaning that the categorical
approach does not apply. But Petitioner also contends that
the statute is indivisible, precluding the modified categorical
approach, and therefore cannot qualify as a controlled
substance offense. We disagree.

1. Categorical Approach

California Penal Code section 182(a)(1) punishes a
broader range of conduct than either 8 U.S.C.
10 MARINELARENA V. SESSIONS

§ 1182(a)(2)(A)(i)(II) or § 1227(a)(2)(B)(i). A defendant
could be convicted under section 182(a)(1) for any criminal
conspiracy, whether or not it relates to a controlled substance.
A conviction under section 182(a)(1), therefore, cannot count
as a controlled substance offense under the categorical
approach. See, e.g., United States v. Trent, 767 F.3d 1046,
1052 (10th Cir. 2014) (holding that a conspiracy conviction
under Okla. Stat. Ann. tit. 21, § 421(A)—a statute with text
similar to the text of Cal. Penal Code § 182(a)(1)—is not a
serious drug offense under the categorical approach because
“the statute could be violated in many ways that have nothing
to do with drugs”), cert. denied, 135 S. Ct. 1447 (2015),
abrogated on other grounds by Mathis, 136 S. Ct. at 2251.

2. Divisibility

Section 182(a) criminalizes the act of “two or more
persons [who] conspire: (1) To commit any crime.”
(Emphasis added.) Here, we must consider whether the
conspiracy statute is divisible as to the target crime.2 Faced
with a statute that incorporates “any” California crime by
reference, we must “consult ‘authoritative sources of state
law’ to determine whether [the] statute contains alternative
elements defining multiple crimes or alternative means by

2
United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014), does
not affect our analysis of whether the conspiracy statute, California Penal
Code section 182(a)(1), is divisible. Garcia-Santana held that Nevada’s
conspiracy statute, Nev. Rev. Stat. § 199.480, is overbroad because it does
not contain, as an element, an overt act. Garcia-Santana, 774 F.3d at 534.
In a footnote, the opinion conveys that the omission of an overt act
requirement cannot be cured by resort to the modified categorical
approach to show that an overt act was proved in a given case. Id. at 534
n.3. As we discuss below in text, an overt act is a requirement for a
conspiracy conviction under California law.
 MARINELARENA V. SESSIONS 11

which a defendant might commit the same crime.” Martinez-
Lopez, 2017 WL 3203552, at *4 (quoting Mathis, 136 S. Ct.
at 2256). The key question is whether a jury must find the
purported element specifically. Here, the California Supreme
Court has supplied the answer.

California law requires jurors to agree unanimously on the
object crime of the conspiracy. “Under Penal Code section
182 the jury must also determine which felony defendants
conspired to commit, and if that felony is divided into
degrees, which degree of the felony they conspired to
commit.” People v. Horn, 524 P.2d 1300, 1304 (Cal. 1974)
(emphasis added); see also People v. Smith, 337 P.3d 1159,
1168 (Cal. 2014) (“A conviction of conspiracy requires proof
that the defendant and another person had the specific intent
to agree or conspire to commit an offense, as well as the
specific intent to commit the elements of that offense, together
with proof of the commission of an overt act . . . in
furtherance of the conspiracy.” (emphasis added) (internal
quotation marks omitted)).

Petitioner relies on a California Court of Appeal case,
People v. Vargas, 110 Cal. Rptr. 2d 210 (Ct. App. 2001), to
argue that section 182(a)(1) is indivisible. In Vargas, the
court considered whether jurors must agree unanimously on
all the object crimes of a multipurpose conspiracy, or if it is
enough for the jurors to agree that crime, generally, was the
object of the conspiracy. Id. at 244–47. The opinion has
caused uncertainty as to the jury unanimity requirement for
multipurpose conspiracy convictions in California. See, e.g.,
Trent, 767 F.3d at 1061 (citing Vargas for the proposition that
some jurisdictions “may” not require that “the jury agree
unanimously on what crime the conspirators agreed to
commit”).
12 MARINELARENA V. SESSIONS

Whatever the California Court of Appeal intended to
convey in Vargas, the California Supreme Court has never
recognized a jury unanimity exception for multipurpose
conspiracies. Our task, when answering a question of state
law, is to follow the precedents of the state’s highest court.
See United Bhd. of Carpenters & Joiners of Am. Local 586 v.
NLRB, 540 F.3d 957, 963 (9th Cir. 2008) (“In analyzing
questions of state law, we are bound by the decisions of the
state’s highest court.”); Ticknor v. Choice Hotels Int’l, Inc.,
265 F.3d 931, 939 (9th Cir. 2001) (“[F]ederal courts are
bound by the pronouncements of the state’s highest court on
applicable state law. . . . In assessing how a state’s highest
court would resolve a state law question—absent controlling
state authority—federal courts look to existing state law
without predicting potential changes in that law.” (internal
quotation marks omitted)). Because the California Supreme
Court requires that jurors agree on a specified object crime in
order to convict a person of conspiracy, California Penal
Code section 182(a)(1) is divisible.

3. Modified Categorical Approach

Because California Penal Code section 182(a)(1) is both
overbroad and divisible, we proceed to the modified
categorical approach, in which we examine the specifics of
Petitioner’s conviction. The only document in the record
relating to a controlled substance is the criminal complaint,
which shows that the target offense of the conspiracy was a
violation of California Health and Safety Code section 11352.
That target offense adds an additional layer to our analysis,
because California Health and Safety Code section 11352 is,
with respect to the specific controlled substance, itself an
overbroad but divisible statute to which the modified
 MARINELARENA V. SESSIONS 13

categorical approach applies. Martinez-Lopez, 2017 WL
3203552, at *4–7.

The criminal complaint identifies transportation of heroin
in describing one of the overt acts alleged as part of the
charged conspiracy; no other drug is mentioned in the
criminal complaint. Heroin is a controlled substance under
federal law. See 21 U.S.C. § 802(6) (defining “controlled
substance” by reference to statutory schedule); 21 U.S.C.
§ 812, Schedule I (b)(10) (listing heroin on Schedule I). Even
so, the record in this case is inconclusive. The conspiracy
count to which Petitioner pleaded guilty does not identify the
particular controlled substance except in the list of overt acts.
But there is no plea agreement, plea colloquy, judgment, or
other document in the record that reveals the factual basis for
Petitioner’s guilty plea. Because Petitioner’s guilty plea
could have rested on an overt act that did not relate to heroin,
we cannot conclusively connect the transportation of heroin
with her conviction. See Lara-Chacon v. Ashcroft, 345 F.3d
1148, 1152 (9th Cir. 2003) (noting that “[c]harging papers
alone are never sufficient” to establish the elements of
conviction (internal quotation marks omitted)); United States
v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (noting
that a charging document “contain[s] the elements of the
crime the government set[s] out to prove; it [does] not
establish the elements to which [the petitioner] admitted in
his guilty plea”).

On an inconclusive record, Petitioner is ineligible for
relief because, with respect to eligibility for relief, she bears
the burden of proof to show that her conviction did not relate
to a federally controlled substance. “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
14 MARINELARENA V. SESSIONS

burden of proving by a preponderance of the evidence that
such grounds do not apply.” 8 C.F.R. § 1240.8(d) (emphasis
added). In Young v. Holder, 697 F.3d 976, 990 (9th Cir.
2012) (en banc), we held that a “petitioner cannot carry the
burden of demonstrating eligibility for cancellation of
removal by establishing an inconclusive record of
conviction.” Petitioner argues that we must overrule that
aspect of Young because it is irreconcilable with a later
United States Supreme Court case, Moncrieffe v. Holder,
133 S. Ct. 1678, 1687 (2013). We turn to that pivotal issue.

B. Burden of Proof

If Young remains good law, Petitioner is ineligible for
cancellation of removal because the ambiguity in the record
prevents her from proving that her conviction did not relate
to a controlled substance as defined by federal law. A three-
judge panel may “reject [a] prior opinion of this court” if an
intervening and inconsistent Supreme Court decision has
“undercut the theory or reasoning underlying the prior circuit
precedent in such a way that the cases are clearly
irreconcilable.” Miller, 335 F.3d at 900. Petitioner and
Amici contend that this standard is met because, under
Moncrieffe, the inquiry under the categorical approach is
whether “a conviction of the state offense necessarily
involved [the] facts equating to the generic federal offense.”
133 S. Ct. at 1684 (emphasis added) (internal quotation marks
and brackets omitted). That inquiry, they assert, is purely a
question of law—not fact—as to which the burden of proof
is irrelevant. We disagree both as to the relevance of
Moncrieffe and as to the nature of the inquiry in the present
context.
 MARINELARENA V. SESSIONS 15

In Young, the petitioner was removable and was found
ineligible for cancellation of removal on account of his
conviction for “sale/transportation/offer[ing] to sell” cocaine
base, an aggravated felony. 697 F.3d at 980–81. The record
of his conviction was inconclusive concerning the aggravated
felony designation.3 Because, in the REAL ID Act, Congress
“place[d] the burden of demonstrating eligibility for
cancellation of removal squarely on the noncitizen,” id. at
988, we held that the petitioner had the burden to establish
that he had not committed an aggravated felony, id. at 989;
see also 8 U.S.C. § 1229a(c)(4) (“An alien applying for relief
or protection from removal has the burden of proof . . . .”).
The petitioner failed to satisfy his burden and, therefore, was
ineligible for relief from removal because the record was
inconclusive on this point. Young, 697 F.3d at 990.

In the later Supreme Court case, the petitioner had
pleaded guilty to possession with intent to distribute
marijuana in violation of a Georgia state law. Moncrieffe,
133 S. Ct. at 1683. The BIA found the petitioner removable
for having committed a drug-trafficking crime that is
punishable as a felony under the federal Controlled
Substances Act, thus making it an aggravated felony. Id.; see
also Moncrieffe v. Holder, 662 F.3d 387, 389–90 (5th Cir.
2011) (explaining the issue in the case as being whether the
petitioner was removable as charged for having committed
this crime). The Supreme Court asked and answered the
question whether the petitioner’s conviction could be
considered categorically an aggravated felony when the

3
The petitioner had pleaded guilty to a charging document that
alleged 14 different theories of how he could have committed the offense,
some of which were aggravated felonies and some of which were not.
Young, 697 F.3d at 990.
16 MARINELARENA V. SESSIONS

Controlled Substances Act punishes the analogous offense as
both a felony and a misdemeanor. 133 S. Ct. at 1684–85.
The Court held that the petitioner was not removable because
he had not been convicted of an aggravated felony; applying
the categorical approach, the Controlled Substances Act did
not “necessarily” punish as a felony all the conduct
proscribed under the Georgia statute. Id. at 1686–87.

Moncrieffe differs from Young because, among other
reasons, the two cases address entirely different legal issues.
Moncrieffe addressed the question whether the petitioner was
removable, a question as to which the government bears the
burden of proof. Young Sun Shin v. Mukasey, 547 F.3d 1019,
1024 (9th Cir. 2008). By contrast, the relevant portion of
Young addressed only the question whether the petitioner was
eligible for cancellation of removal. As to that question, the
noncitizen, not the government, bears the burden of proof.
8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d). Thus it is
Congress, not the Supreme Court, that assigned the burden of
proof to a noncitizen who seeks relief in the form of
cancellation of removal. See 8 U.S.C. § 1229a(c)(4) (“An
alien applying for relief or protection from removal has the
burden of proof to establish that the alien” is eligible.). The
Moncrieffe opinion does not cite that statute anywhere, and
for good reason. As noted, the issue before the Court
concerned removability, not relief from removal.

It is well established that the party who bears the burden
of proof loses if the record is inconclusive on the crucial
point. See, e.g., Schaffer ex rel. Schaffer v. Weast, 546 U.S.
49, 51 (2005) (holding that, under the Individuals with
Disabilities Education Act, whichever party seeks relief must
carry the burden of persuasion, whether it be the parents or
the school district); Dir., Office of Workers’ Comp. Programs
 MARINELARENA V. SESSIONS 17

v. Greenwich Collieries, 512 U.S. 267, 272–81 (1994)
(holding that, under the Administrative Procedure Act, the
burden of proof encompasses the burden of persuasion; when
the evidence is evenly balanced, the party with the burden
must lose). Moncrieffe did not cite, let alone overrule, those
and similar cases recognizing the effect of the burden of proof
when the relevant evidence is in equipoise. That is because,
as discussed below, Moncrieffe is not about the burden of
proof.

Under Supreme Court law, when evidence is in equipoise,
the burden of persuasion determines the outcome. Nor is it
problematic that the same inconclusive evidence can result in
a favorable decision on removability (Moncrieffe) yet an
unfavorable decision on cancellation (Young). See Alvarez
Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,
1164–65 (11th Cir. 2008) (noting that two factual findings
were not inconsistent given that “it is logically possible for
the losing side to have varied with, because it depended on,
the burden of proof”); cf. United States v. Meza-Soria,
935 F.2d 166, 169 (9th Cir. 1991) (noting that “courts have
made it quite clear that because different standards of proof
are involved, acquittal in a criminal action does not bar a civil
suit based on the same facts” (internal quotation marks and
brackets omitted)). In Young, we joined the Fourth and Tenth
Circuits in recognizing that, when the burden of persuasion
rests on the noncitizen to show eligibility for cancellation of
removal, an inconclusive record fails to satisfy that burden.
697 F.3d at 989 (citing Salem v. Holder, 647 F.3d 111,
115–16 (4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288,
1289–90 (10th Cir. 2009)); see also Syblis v. Att’y Gen. of
U.S., 763 F.3d 348, 356–57 (3d Cir. 2014) (reaching the same
conclusion, post-Moncrieffe); Sanchez v. Holder, 757 F.3d
712, 720 n.6 (7th Cir. 2014) (same). But see Sauceda v.
18 MARINELARENA V. SESSIONS

Lynch, 819 F.3d 526, 531, 532 & n.10 (1st Cir. 2016)
(rejecting Young and holding that Moncrieffe creates a
presumption that a defendant committed the “least of the
acts” that goes unrebutted when Shepard documents “shed no
light on the nature of the offense or conviction,” even in the
cancellation-of-removal context).4

To be sure, Moncrieffe acknowledged that its analysis for
determining whether a particular crime of conviction is
categorically a crime involving moral turpitude “is the same
in both” the removal and cancellation contexts. 133 S. Ct. at
1685 n.4 (citing Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010), which considered whether the petitioner was eligible
for cancellation of removal after having committed two
simple possession offenses under Texas state law). And that
is true, so far as the discussion in Moncrieffe goes:
“[c]onviction is the relevant statutory hook” whether
determining removability or eligibility for relief from
removal. Id. at 1685 (internal quotation marks omitted). But
Moncrieffe did not discuss the differences in the burden of
proof in those two contexts; it had no reason to. To the
contrary, the Court limited its rejection of the government’s
suggestion that a noncitizen should have an opportunity to
disprove the misdemeanor version of the Georgia statute to
the categorical context: “This solution is entirely

4
In Le v. Lynch, 819 F.3d 98, 108 (5th Cir. 2016), the court held that,
“[n]otwithstanding the inconclusive evidence in the instant case, . . . the
burden remains on [the petitioner] to prove eligibility for relief from
removal.” But there, the ambiguity did not rest on a divisible statute, and
the court declined to decide “whether Moncrieffe affected how courts
should apply the modified categorical approach to determine whether a
prior conviction disqualifies a noncitizen from relief from removal when
the record of conviction is ambiguous as to whether the elements of the
crime correspond to a disqualifying offense.” Id. at 107 n.5.
 MARINELARENA V. SESSIONS 19

inconsistent with both the INA’s text [8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1229b(a)(3)] and the categorical
approach.” Moncrieffe, 133 S. Ct. at 1690 (emphasis added).
Moncrieffe therefore cannot be read to inform the relevant
dispute in Young, which pertained only to the operation of the
burden of proof when the modified categorical approach
applies.5

For all these reasons, Moncrieffe and Young are not
clearly irreconcilable.

We are equally unpersuaded by Petitioner and Amici’s
argument that the modified categorical approach involves
only a legal inquiry and that the burden of proof is irrelevant
after Moncrieffe and Descamps. As noted, Moncrieffe did not
decide or even suggest anything about the burden of proof.
Descamps, for its part, did not intimate that every inquiry
under the modified categorical approach is a question of law;
it simply held that the modified categorical approach was “a
tool for implementing the categorical approach” and,
therefore, could not be applied to indivisible statutes. 133 S.
Ct. at 2284, 2286–87.

5
Amici also contend that Young is clearly irreconcilable with
Moncrieffe because of the latter’s statement that “[t]he categorical
approach was designed to avoid” inconsistent treatment of “two
noncitizens . . . ‘convicted of’ the same offense.” Moncrieffe, 133 S. Ct.
at 1690. The Court made that comment in the context of applying the
categorical approach, not the modified categorical approach. And Amici’s
proposed solution—overruling Young and allowing relief when the record
of conviction is ambiguous—would not eliminate the prospect of
inconsistent results: The opportunity for individuals, convicted of a given
offense, to obtain relief would still vary depending on the record’s clarity,
as only the default rule would change. Such a rule therefore would not
ameliorate Amici’s concern about inconsistent treatment of similarly
situated persons.
20 MARINELARENA V. SESSIONS

Although the modified categorical approach, like the
categorical approach, involves some strictly legal
issues—such as a statute’s divisibility—the inquiry into
which part of a divisible statute underlies the petitioner’s
crime of conviction is, if not factual, at least a mixed question
of law and fact.6 “[M]ixed questions of law and fact” are
those in which “the historical facts are admitted or
established, the rule of law is undisputed, and the issue is
whether the facts satisfy the statutory standard.” Pullman-
Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). The
modified categorical approach squarely fits within that
definition. See Descamps, 133 S. Ct. at 2284–85 (explaining
that, under the modified categorical approach, courts may
review approved “extra-statutory materials . . . [to] discover
which statutory phrase contained within a statute listing
several different crimes[] covered a prior conviction.”
(internal quotation marks omitted)); Taylor, 495 U.S. at 600
(holding that, under the categorical approach, courts “look
only to the fact that the defendant had been convicted of”
certain crimes (emphasis added)); see also Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
(emphasis added)).

6
At least one other circuit has held that the determination of the
offense of conviction is a purely factual inquiry. See Le, 819 F.3d at 105
(“[T]he alien has the burden of proof to establish that he satisfies the
applicable eligibility requirements in order to prove that any grounds for
denial do not apply. When an alien’s prior conviction is at issue, the
offense of conviction itself is a factual determination, not a legal one.
However, determining whether that conviction is a particular type of
generic offense is a legal question.” (emphasis added) (citations omitted)).
 MARINELARENA V. SESSIONS 21

When reviewing mixed questions of law and fact, we
regularly consider the burden of persuasion. See, e.g.,
Dorrance v. United States, 809 F.3d 479, 484 (9th Cir. 2015)
(stating that the question whether taxpayers had a cost basis
in assets that they later sold, but for which they paid nothing,
“is a mixed question of law and fact” as to which the
taxpayers bear the burden of persuasion); United States v.
Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013) (noting that
“[t]he issue of whether a person has actual or apparent
authority to consent to a search is a mixed question of law
and fact” and that “the government has the burden of
establishing the effectiveness of a third party’s consent to a
search”); United States v. Blackman, 72 F.3d 1418, 1423 (9th
Cir. 1995) (stating that we review de novo the district court’s
rulings on the scope of the attorney-client privilege because
they involve “mixed questions of law and fact” and that the
burden of persuasion is on the party seeking to establish that
the privilege applies); United States v. Lingenfelter, 997 F.2d
632, 636, 637 (9th Cir. 1993) (stating that whether police
conduct amounts to a “search” within the meaning of the
Fourth Amendment is “a mixed question of law and fact” and
that the defendant bears the burden of demonstrating that he
or she had a legitimate expectation of privacy in the place
searched).

To summarize, Moncrieffe is about removal; by contrast,
Young is about cancellation of removal. Moncrieffe discusses
how the categorical approach works when defining a crime
involving moral turpitude and says nothing at all about
operation of the burden of proof, which was not an issue in
that case. Young discusses the burden of proof when
applying the modified categorical approach. Although
Descamps makes clear that the modified categorical approach
is “a tool for implementing the categorical approach,” 133 S.
22 MARINELARENA V. SESSIONS

Ct. at 2284, it is a tool that requires the consideration of
factual documents within the context of the law and, by that
process, makes the burden of proof relevant. Thus, neither
Moncrieffe nor Descamps requires us to overrule Young. The
decisions are not clearly irreconcilable.

C. Expungement

Finally, Petitioner argues that the expungement of her
conspiracy conviction removes it from the definition of
“conviction” under 8 U.S.C. § 1101(a)(48)(A).7 Specifically,
she challenges our deference to the BIA’s interpretation of
§ 1101(a)(48)(A). See Murillo-Espinoza v. INS, 261 F.3d
771, 774 (9th Cir. 2001) (adopting the BIA’s interpretation of
§ 1101(a)(48)(A) in In re Roldan, 22 I. & N. Dec. 512 (B.I.A.
1999) (en banc), as “preclud[ing] the recognition of
subsequent state rehabilitative expungements of
convictions”).

Petitioner did not present that claim to the BIA, and it is
not exhausted. We lack jurisdiction over an unexhausted
claim. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004) (holding that 8 U.S.C. § 1252(d)(1) “mandates

7
Section 1101(a)(48)(A) provides:

The term “conviction” means, with respect to an
alien, a formal judgment of guilt of the alien entered by
a court or, if adjudication of guilt has been withheld,
where—(i) a judge or jury has found the alien guilty or
the alien has entered a plea of guilty or nolo contendere
or has admitted sufficient facts to warrant a finding of
guilt, and (ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien’s liberty
to be imposed.
 MARINELARENA V. SESSIONS 23

exhaustion and therefore generally bars us, for lack of
subject-matter jurisdiction, from reaching the merits of a legal
claim not presented in administrative proceedings below”).
Accordingly, we must dismiss the expungement claim.8

Petition DENIED IN PART and DISMISSED IN
PART.

TASHIMA, Circuit Judge, dissenting:

The majority holds that Young v. Holder, 697 F.3d 976
(9th Cir. 2012) (en banc), remains good law because it is not
clearly irreconcilable with Moncrieffe v. Holder, 133 S. Ct.
1678 (2013). Maj. Op. at 19. Under Young, Marinelarena
must prove that she was not convicted of a controlled
substance offense in order to establish her eligibility for
cancellation of removal. Because the record is ambiguous on
this point, the majority reasons, Marinelarena cannot satisfy
her burden of proof and is thus ineligible for relief. Id. at 13.
I disagree with the majority’s conclusion that Moncrieffe does
not abrogate Young. Under Moncrieffe, the ambiguity in the
record as to Marinelarena’s offense of conviction means that

8
Even if we agreed with Petitioner that this claim qualifies for an
exception to the exhaustion requirement, we have rejected a similar
argument on the merits. See Reyes v. Lynch, 834 F.3d 1104, 1108 (9th
Cir. 2016) (holding that, even though a California court set aside a
petitioner’s earlier nolo contendere plea, a “state conviction expunged
under state law is still a conviction for purposes of eligibility for
cancellation of removal and adjustment of status,” even when the
petitioner was never incarcerated, because “the alien was punished or his
liberty was restrained by the terms of his probation”).
24 MARINELARENA V. SESSIONS

she has not committed an offense disqualifying her from
relief. I respectfully dissent.

In Moncrieffe, the Supreme Court explained the
framework for applying the categorical approach to determine
whether a noncitizen has committed an aggravated felony, as
defined by the Immigration and Nationality Act. 133 S. Ct.
at 1684–85. In cases applying the categorical approach,
courts compare the elements of a noncitizen’s offense of
conviction to those of a generic federal offense that would
disqualify her from relief. Descamps v. United States, 133 S.
Ct. 2276, 2283 (2013). The Court in Moncrieffe specified
that, under the categorical approach, courts should “look ‘not
to the facts of the particular prior case,’ but instead to
whether ‘the state statute defining the crime of conviction’
categorically fits within the ‘generic’ federal definition of a
corresponding aggravated felony.” Moncrieffe, 133 S. Ct. at
1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
186 (2007)). “[A] state offense is a categorical match with a
general federal offense only if a conviction of the state
offense ‘necessarily involved . . . facts equating to [the]
general [federal offense].’” Id. (emphasis added) (quoting
Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality
opinion)). “Whether the noncitizen’s actual conduct involved
such facts is ‘quite irrelevant.’” Id. (quoting United States ex
rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)).

The Court further stated that, if a statute contains
multiple, alternative versions of a crime (that is, if the
modified categorical approach applies), “a court may
determine which particular offense the noncitizen was
convicted of by examining the charging document and jury
instructions, or in the case of a guilty plea, the plea
agreement, plea colloquy, or ‘some comparable judicial
 MARINELARENA V. SESSIONS 25

record of the factual basis for the plea.’” Id. (emphasis
added) (quoting Nijhawan v. Holder, 557 U.S. 29, 35 (2009)).
The Court labeled this inquiry as a whole “the categorical
approach,” as opposed to distinguishing between the
categorical and modified categorical approaches. Id. at 1685.

In Moncrieffe, the government argued that the petitioner
had committed a “felony punishable under the Controlled
Substances Act” (“CSA”), which qualifies as an aggravated
felony that would allow the petitioner to be deported.
Moncrieffe, 133 S. Ct. at 1683. The Court disagreed. Id. at
1684. The record established that Moncrieffe had been
convicted under a state statute proscribing conduct that
constitutes an offense under the CSA, but the record was
ambiguous as to whether the CSA would “‘necessarily’
prescribe felony punishment for that conduct.” Id. at 1685
(emphasis added). The Supreme Court held that “[a]mbiguity
on this point means that the conviction did not ‘necessarily’
involve facts that correspond to an offense punishable as a
felony under the CSA.” Id. at 1687. “Under the categorical
approach, then, Moncrieffe was not convicted of an
aggravated felony” allowing him to be deported. Id.

This analysis is clearly irreconcilable with Young. Young
holds that ambiguity in the record as to whether the
noncitizen committed an aggravated felony means that she
was convicted of the offense for purposes of the immigration
statutes. Young, 697 F.3d at 988–99. Moncrieffe holds the
opposite: If the record does not conclusively establish that
the noncitizen committed the offense, then she was not
convicted of the offense for purposes of the immigration
statutes. Moncrieffe, 133 S. Ct. at 1687.
26 MARINELARENA V. SESSIONS

The majority’s arguments to the contrary are
unpersuasive. The majority first contends that Moncrieffe
does not control because it “addressed the question whether
the petitioner was removable, a question as to which the
government bears the burden of proof,” while this case
concerns cancellation of removal, for which an applicant
bears the burden of proving eligibility. Maj. Op. at 16. But
Moncrieffe itself explicitly forecloses this distinction,
explaining that the categorical “analysis is the same in both
[the removal and cancellation of removal] contexts.”
Moncrieffe, 133 S. Ct. at 1685 n.4 (emphasis added). Under
Moncrieffe, the framework for applying the categorical and
modified categorical approaches does not depend on which
party bears the burden of proof in a particular kind of
immigration proceeding.

The majority sidesteps this explicit instruction by arguing
that Moncrieffe “limited” its holding “to the categorical
context.” Maj. Op. at 18–19. Per the majority, “Moncrieffe
therefore cannot be read to inform the relevant dispute in
Young, which pertained only to the operation of the burden of
proof when the modified categorical approach applies.” Maj.
Op. at 19 (footnote omitted). This purported distinction
overstates the difference between the categorical and
modified categorical approaches. As the Supreme Court has
noted, the modified categorical approach is “a tool for
implementing the categorical approach” that allows a court
“to examine a limited class of documents to determine which
of a statute’s alternative elements formed the basis of the
defendant’s prior conviction.” Descamps v. United States,
133 S. Ct. 2276, 2284 (2013).

Thus, in Moncrieffe, the Court outlined both what we
have called the “categorical” step of the analysis and the
 MARINELARENA V. SESSIONS 27

“modified categorical” step of the analysis, and then labeled
the inquiry as a whole “the categorical approach.”
Moncrieffe, 133 S. Ct. at 1684–85 (outlining the categorical
and modified categorical analysis and stating that “[t]his
categorical approach has a long pedigree in our Nation’s
immigration law”). That is because the relevant inquiry in
both categorical and modified categorical cases is the same:
A court must compare the elements of the offense of which
the noncitizen was convicted to the elements of a generic
federal offense disqualifying her from relief, and then
determine what facts are necessarily established by that
conviction. The only difference between the two approaches
is that, in modified categorical cases, a statute lists “multiple,
alternative versions of [a] crime,” Descamps, 133 S. Ct. at
2284, so the court must look to the record of conviction to
determine “which particular offense the noncitizen was
convicted of.” Moncrieffe, 133 S. Ct. at 1684. Once that
determination is made, the relevant question is the same as
that in categorical cases: A court must ask what the
noncitizen’s conviction necessarily involved, “not what acts
[the noncitizen] committed.” Id. at 1685.

In Mathis v. United States, 136 S. Ct. 2243 (2016), the
Supreme Court reaffirmed that the categorical and modified
categorical approaches involve the same analysis. The Court
stated that, “when a statute sets out a single (or ‘indivisible’)
set of elements to define a single crime,” a court should
“line[] up that crime’s elements alongside those of the generic
offense and see[] if they match.” Id. at 2248. “Some statutes,
however, have a more complicated (sometimes called
‘divisible’) structure, making the comparison of elements
harder.” Id. at 2249. Cases involving such statutes apply the
modified categorical approach. Under this approach, “a
sentencing court looks to a limited class of documents (for
28 MARINELARENA V. SESSIONS

example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements,
a defendant was convicted of.” Id. “The court can then
compare that crime, as the categorical approach commands,
with the relevant generic offense.” Id. (emphasis added).1

In other words, whether a case applies what we have
called the “categorical” or the “modified categorical”
approach, the analysis is the same: The court asks whether
the noncitizen was necessarily convicted of an offense
disqualifying her from relief. If the record of conviction is
ambiguous on this point – as it is in this case – then her
“conviction did not ‘necessarily’ involve facts that
correspond to” a disqualifying offense. Moncrieffe, 133 S.
Ct. at 1687 (emphasis added). Thus, under the modified
categorical approach, Marinelarena was not convicted of a
controlled substance offense under federal law.2

1
The majority contends that “the inquiry into which part of a divisible
statute underlies the petitioner’s crime of conviction is, if not factual, at
least a mixed question of law and fact” because the inquiry requires the
court to examine certain documents in the record of conviction. Maj. Op.
at 20. This argument misses the mark. The relevant point is that, under
the modified categorical approach, the court looks at those documents
only to determine which crime the petitioner was convicted of, and
whether that crime’s elements match those of a disqualifying generic
offense. This is a purely legal inquiry. See Descamps, 133 S. Ct. at 2293
(“The modified approach does not authorize a sentencing court to
substitute . . . a facts-based inquiry for an elements-based one.”).
2
Although this is an open question in our circuit, another panel
recently has characterized Moncrieffe, 133 S. Ct. at 1678, as “suggest[ing]
an inconclusive record works to a petitioner’s advantage, regardless of
which party bears the burden of proof.” Lozano-Arredondo v. Sessions,
2017 WL 3393454, at *4 (9th Cir. Aug. 8, 2017) (citing Almanza-Arenas
v. Lynch, 815 F.3d 469, 488–89 (9th Cir. 2016) (en banc) (Watford, J.,
concurring in the judgment). In Almanza-Arenas, Judge Watford noted
 MARINELARENA V. SESSIONS 29

I would grant the petition and respectfully dissent.

that “our decision in Young [is] fundamentally incompatible with the
categorical approach, especially after Descamps and Moncrieffe clarified
the elements-focused nature of the inquiry.” Almanza-Arenas, 815 F.3d
at 489.