Young v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSEPH CRISTOPHER YOUNG, aka 
Joseph Christopher Young,
No. 07-70949
Petitioner,
v.  Agency No.
A035-029-889
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted En Banc
December 12, 2011—San Francisco, California

Filed September 17, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Betty B. Fletcher, Harry Pregerson, Andrew J. Kleinfeld,
Susan P. Graber, Raymond C. Fisher, Richard A. Paez,
Richard R. Clifton, Carlos T. Bea, and Sandra S. Ikuta,
Circuit Judges.

Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by
Judge B. Fletcher
Partial Concurrence and Partial Dissent by Judge Ikuta

11273
 YOUNG v. HOLDER 11277

COUNSEL

Katherine Mayer Mangan, Mayer Mangan, APLC, San Diego,
California; Robert W. Perrin, Latham & Watkins LLP, Los
Angeles, California, for the petitioner.

Bryan S. Beier, Senior Litigation Counsel, United States
Department of Justice, Washington, D.C., for the respondent.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,
San Diego, California, for the amici curiae.

OPINION

GRABER, Circuit Judge:

Petitioner Joseph Young petitions for review of the Board
of Immigration Appeals’ (“BIA”) decision affirming a final
order of removability. The BIA held that Petitioner is ineligi-
ble for cancellation of removal because he has been convicted
of an aggravated felony. With a differently configured major-
ity concurring as to each of the following issues, we hold:

(1) Petitioner failed to exhaust the claim that his convic-
tion was not for a violation of a law relating to a controlled
substance within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).
We therefore lack jurisdiction over that claim.
11278 YOUNG v. HOLDER
(2) The evidentiary limitations articulated in Shepard v.
United States, 544 U.S. 13, 26 (2005), apply when determin-
ing, under the modified categorical approach, whether a prior
conviction renders an alien ineligible for cancellation of
removal as an aggravated felon under 8 U.S.C. § 1229b.

(3) Under the modified categorical approach, a guilty plea
to a conjunctively phrased charging document establishes
only the minimal facts necessary to sustain a defendant’s con-
viction. In other words, when a conjunctively phrased charg-
ing document alleges several theories of the crime, a guilty
plea establishes a conviction under at least one, but not neces-
sarily all, of those theories. In so deciding, we reconcile our
inconsistent precedents on this issue by adopting one line of
cases—including Malta-Espinoza v. Gonzales, 478 F.3d 1080,
1082 n.3 (9th Cir. 2007)—and rejecting the other, including
United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.
2008) (en banc) (per curiam).

(4) An alien cannot carry the burden of demonstrating eligi-
bility for cancellation of removal by merely establishing that
the relevant record of conviction is inconclusive as to whether
the conviction is for an aggravated felony. We overrule
Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir.
2007), and Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84
(9th Cir. 2011), to the extent that they conflict with this hold-
ing.

Applying those four holdings to the facts of this case, as we
will explain below, we dismiss the petition in part and deny
it in part.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Joseph Young is a native and citizen of St. Kitts
and Nevis. He became a lawful permanent resident of the
United States in 1977.
 YOUNG v. HOLDER 11279
In February of 2005, Petitioner pleaded guilty to “Sale/
Transportation/Offer to Sell” cocaine base in violation of Cal-
ifornia Health & Safety Code section 11352(a).1 He received
a sentence of three years’ imprisonment.

Soon thereafter, the government issued a Notice to Appear,
charging Petitioner with removability both as an alien con-
victed of an offense relating to a controlled substance, 8
U.S.C. § 1227(a)(2)(B)(i),2 and as an alien convicted of an
aggravated felony related to illicit trafficking in a controlled
substance, id. § 1227(a)(2)(A)(iii).3
1
California Health & Safety Code section 11352(a) states:
Except as otherwise provided in this division, every person
who transports, imports into this state, sells, furnishes, adminis-
ters, or gives away, or offers to transport, import into this state,
sell, furnish, administer, or give away, or attempts to import into
this state or transport (1) any controlled substance specified in
subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of subdi-
vision (d) of Section 11054, or specified in subdivision (b) or (c)
of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, unless upon the written pre-
scription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprison-
ment pursuant to subdivision (h) of Section 1170 of the Penal
Code for three, four, or five years.
2
Title 8 U.S.C. § 1227(a)(2)(B)(i) states:
Any alien who at any time after admission has been convicted
of a violation of (or a conspiracy or attempt to violate) any law
or regulation of a State, the United States, or a foreign country
relating to a controlled substance (as defined in section 802 of
Title 21), other than a single offense involving possession for
one’s own use of 30 grams or less of marijuana, is deportable.
3
Title 8 U.S.C. § 1227(a)(2)(A)(iii) states that “[a]ny alien who is con-
victed of an aggravated felony at any time after admission is deportable.”
An aggravated felony is defined by 8 U.S.C. § 1101(a)(43)(B), which
states in pertinent part: “The term ‘aggravated felony’ means . . . (B) illicit
trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title
18)[.]"
11280 YOUNG v. HOLDER
At the immigration hearing, the government produced a
copy of the electronic court docket in California Case No.
BA270389 and a felony complaint and information in the
same case. Count 1 of the information charged:

On or about August 26, 2004, in the County of
Los Angeles, the crime of SALE/
TRANSPORTATION/OFFER TO SELL CON-
TROLLED SUBSTANCE, in violation of HEALTH
& SAFETY CODE SECTION 11352(a), a Felony,
was committed by JOSEPH CHRISTOPH [sic]
YOUNG, who did unlawfully transport, import into
the State of California, sell, furnish, administer, and
give away, and offer to transport, import into the
State of California, sell, furnish, administer, and give
away, and attempt to import into the State of Califor-
nia and transport a controlled substance, to wit,
COCAINE BASE.

Thus, the information tracked the wording of section 11352(a)
in its entirety, except that the charge used the conjunctive
“and,” whereas the statutory text uses the disjunctive “or.”
The court records show that Petitioner pleaded guilty to Count
1. At the immigration hearing, he also admitted the factual
allegations in the Notice to Appear.

Following the hearing, the immigration judge (“IJ”) held
that Petitioner was removable on both grounds charged in the
Notice to Appear. With respect to the aggravated felony
ground, the IJ ruled that Petitioner’s guilty plea to Count 1 of
the information constituted a plea “to each and every allega-
tion,” including the sale of cocaine, because Count 1 had been
charged in the conjunctive. Accordingly, the IJ held that Peti-
tioner was ineligible for cancellation of removal and ordered
him removed.

The BIA affirmed in a reasoned opinion. Noting that Peti-
tioner had failed to challenge the IJ’s holding that he was
 YOUNG v. HOLDER 11281
removable for a controlled substance conviction, the BIA
upheld his removal on that ground. The BIA did not address
whether Petitioner was also removable for an aggravated fel-
ony conviction.

Next, the BIA held that Petitioner was ineligible for cancel-
lation of removal. Citing 8 U.S.C. § 1229a(c)(4) and 8 C.F.R.
§ 1240.8(d), the BIA observed that Petitioner had the burden
of establishing his eligibility for cancellation, which thus
required Petitioner to show that he had not been convicted of
an aggravated felony. The BIA agreed with the IJ that, under
Ninth Circuit precedent, the guilty plea to the conjunctively
phrased Count 1 established every factual allegation con-
tained therein. Analyzing the record before it, the BIA found
no evidence that Petitioner had not been convicted of an
aggravated felony.

Petitioner timely filed a petition for review. He makes two
main arguments. First, he argues that the BIA erred in finding
him removable for having been convicted of an offense relat-
ing to a controlled substance. Second, he challenges the BIA’s
ruling that he is ineligible for cancellation of removal because
he was convicted of an aggravated felony.

STANDARDS OF REVIEW

Where, as here, the BIA conducts its own review of the evi-
dence and law, our review is limited to the BIA’s decision,
except to the extent that the IJ’s opinion is expressly adopt-
ed.” Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir. 2011)
(internal quotation marks omitted). We review de novo all
questions of law, including whether a particular conviction
qualifies as an aggravated felony. Id.; Carlos-Blaza v. Holder,
611 F.3d 583, 587 (9th Cir. 2010). We review factual findings
for substantial evidence. Antonyan, 642 F.3d at 1254. The
BIA’s factual findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
11282 YOUNG v. HOLDER
DISCUSSION

A. We lack jurisdiction over the claim that Petitioner was
not convicted of a controlled substance offense.

Petitioner first contends that his conviction was not for a
controlled substance offense. Specifically, he argues that Cali-
fornia Health & Safety Code section 11352(a) regulates more
substances than the federal Controlled Substances Act does.
We must dismiss this claim.

We lack jurisdiction to consider the merits of a legal claim
not presented to the BIA. Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004). Presenting an argument to the BIA
requires reasoning sufficient to put the BIA on notice that it
was called on to decide the issue. Zhang v. Ashcroft, 388 F.3d
713, 721 (9th Cir. 2004) (per curiam). A general challenge to
the IJ’s decision is insufficient; the alien must specify particu-
lar issues on appeal to the BIA. Zara v. Ashcroft, 383 F.3d
927, 930 (9th Cir. 2004).

Under those standards, Petitioner failed to alert the BIA to
this issue. Although he points to certain statements in his brief
to the BIA, those statements pertained only to his removabil-
ity as an aggravated felon. Indeed, the sentences on which he
relies are in the middle of a section titled “THE IMMIGRA-
TION JUDGE ERRED IN FINDING THAT [PETITIONER]
WAS CONVICTED OF AN AGGRAVATED FELONY.”
Taken as a whole and fairly read in context, neither the notice
of appeal nor the brief to the BIA informed the BIA of a chal-
lenge to the controlled substance ground of removability.
Therefore, we dismiss this unexhausted challenge.4
4
Because the BIA found Petitioner removable only on the controlled
substance ground, it did not reach the question whether he is removable
for conviction of an aggravated felony. Neither do we.
 YOUNG v. HOLDER 11283
B. The record of conviction is inconclusive as to whether
the conviction was for an aggravated felony; thus, Peti-
tioner has not carried the burden of establishing his eli-
gibility for cancellation of removal.

Petitioner next argues that the BIA erred in finding him to
be an aggravated felon and thus ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a)(3). We deny the petition
for review on this claim.

1. Shepard limits the documents that we may consider.

[1] In both criminal and immigration contexts, we often
must inquire whether an individual’s prior state conviction
constitutes a conviction for a generic federal crime. See, e.g.,
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-86 (2007)
(applying, in the immigration context, the approach set forth
in Taylor v. United States, 495 U.S. 575, 599-600 (1990), in
the criminal sentencing context); United States v. Aguila-
Montes de Oca, 655 F.3d 915, 922 (9th Cir. 2011) (en banc)
(per curiam) (Bybee, J., opinion) (noting that we “have
extended that Taylor/Shepard framework” to a variety of con-
texts, including immigration). “The categorical and modified
categorical frameworks, first outlined by the Supreme Court
in [Taylor] establish the rules by which the government may
use prior state convictions to enhance certain federal sen-
tences and to remove certain aliens.” Aguila-Montes de Oca,
655 F.3d at 917.

[2] Under the categorical approach, we “look only to the
fact of conviction and the statutory definition of the prior
offense.” Taylor, 495 U.S. at 602; see also Kawashima v.
Holder, 132 S. Ct. 1166, 1172 (2012) (“[W]e employ a cate-
gorical approach by looking to the statute defining the crime
of conviction, rather than to the specific facts underlying the
crime.”). In applying the categorical approach, we “ ‘compare
the elements of the statute of conviction with a federal defini-
tion of the crime to determine whether conduct proscribed by
11284 YOUNG v. HOLDER
the statute [of conviction] is broader than the generic federal
definition.’ ” Cortez-Guillen v. Holder, 623 F.3d 933, 935
(9th Cir. 2010) (alteration in original) (quoting Cerezo v.
Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008)).

[3] Here, the statute of conviction, California Health &
Safety Code section 11352(a), is admittedly broader than the
generic federal crime because it encompasses some conduct
outside the definition of the federal crime. An “aggravated
felony” is defined in 8 U.S.C. § 1101(a)(43)(B) as “including
a drug trafficking crime (as defined in section 924(c) of Title
18).” Section 11352(a), however, criminalizes the mere solici-
tation of, or offer to sell, a controlled substance, which is not
an aggravated felony, Levya-Licea v. INS, 187 F.3d 1147,
1150 (9th Cir. 1999), as well as the sale of cocaine, which is
one. Under the categorical approach, therefore, Petitioner’s
conviction does not qualify as an aggravated felony.

[4] When, as here, the state statute of conviction criminal-
izes a broader range of conduct than the generic federal crime,
we employ the “modified categorical approach,” which
requires us to determine whether “a jury was actually
required to find all the elements” of the generic federal crime.
Aguila-Montes de Oca, 655 F.3d at 920 (internal quotation
marks omitted). When applying the modified categorical
approach in the context of a guilty plea, we must “determine
whether a guilty plea to an offense defined by a nongeneric
statute necessarily admitted elements of the generic offense.”
Id. at 921 (emphasis added) (internal quotation marks omit-
ted).

[5] In Shepard, 544 U.S. at 26, the Supreme Court
imposed evidentiary limitations on the types of documents
that we may consider under the modified categorical
approach; we may review only the charging instrument, tran-
script of the plea colloquy, plea agreement, and comparable
judicial record of this information. Id. That holding applies
here.
 YOUNG v. HOLDER 11285
The dissent on this point would hold that, when determin-
ing eligibility for cancellation of removal, the IJ should be
able to consider evidence beyond the documents allowed
under Shepard. Judge Ikuta’s dissent at 11306, 11315. The
dissent relies heavily on Nijhawan v. Holder, 557 U.S. 29
(2009), to reach that conclusion. But in Nijhawan, the
Supreme Court allowed inquiry beyond the Shepard docu-
ments only after it held that the statutory text demanded a
circumstance-specific inquiry, rather than a categorical one.5
Id. at 40. As we have previously observed, in Nijhawan,
“[t]he Court held that the provision calls for a ‘circumstance-
specific,’ not a ‘categorical,’ interpretation.” Aguila-Montes
de Oca, 655 F.3d at 921 (internal quotation marks omitted).
For that reason, the Court rejected the application of the mod-
ified categorical approach and held that, in determining
whether a previous conviction met the $10,000 threshold, the
immigration court need not observe the evidentiary limita-
tions articulated in Shepard. Id. Under Nijhawan, then, a fact-
specific approach is appropriate only when the statute refers
to “the specific circumstances in which a crime was commit-
5
In Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 n.11 (2010),
the Supreme Court recognized the narrowness of its holding in Nijhawan:
Our decision last Term in Nijhawan . . . rejected the so-called
categorical approach . . . when assessing whether, under 8 U.S.C.
§ 1101(a)(43)(M)(i), a noncitizen has committed “an offense that
. . . involves fraud or deceit in which the loss to the . . . victims
exceeds $10,000.” Our analysis was tailored to the
“circumstance-specific” language contained in that particular
subsection of the aggravated felony definition. And we specifi-
cally distinguished the “generic” categories of aggravated felo-
nies for which a categorical approach might be appropriate—
including the “illicit trafficking” provision—from the
“circumstance-specific” offense at hand. Moreover, . . . there was
no debate in Nijhawan over whether the petitioner actually had
been “convicted” of fraud; we only considered how to calculate
the amount of loss once a conviction for a particular category of
aggravated felony has occurred.
(Citations omitted.)
11286 YOUNG v. HOLDER
ted,” id. (internal quotation marks omitted), but the modified
categorical approach—with its attendant evidentiary
limitations—continues to apply when the statute refers to
generic crimes.

[6] Unlike in Nijhawan, the statutory text at issue here pro-
vides no justification for abandoning the now-traditional mod-
ified categorical approach in favor of a “circumstance-
specific” inquiry. See Carachuri-Rosendo v. Holder, 130
S. Ct. 2577, 2586 (2010) (holding that, to determine eligibility
for cancellation of removal, the focus of the inquiry is on the
prior “conviction itself,” not on the circumstances surround-
ing the conviction, and suggesting that the categorical
approach is appropriate to determine whether a prior convic-
tion qualifies as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B), the provision at issue here). Instead,
§ 1229b requires a legal assessment of whether the prior
crime of conviction constitutes a generic federal offense. 8
U.S.C. § 1229b(a)(3). In answering that question, we may not
consider whether the conduct underlying the prior conviction
potentially could meet the elements of a federal generic
offense, but must, instead, determine the elements upon which
the conviction necessarily rested. Aguila-Montes de Oca, 655
F.3d at 920-21.

If anything, the Supreme Court’s reasoning for why Shep-
ard did not apply in Nijhawan supports the application of
Shepard here. The Court explained that Shepard had no appli-
cation to a circumstance-specific inquiry because Shepard
"developed the evidentiary list . . . for [the purpose] of deter-
mining which statutory phrase (contained within a statutory
provision that covers several different generic crimes) cov-
ered a prior conviction.” Nijhawan, 529 U.S. at 41. “[W]hich
statutory phrase . . . covered a prior conviction,” id., is pre-
cisely the inquiry before us here.

The dissent also points to 8 U.S.C. § 1229a(c)(4)(B) to sup-
port the position that the Shepard evidentiary limitations do
 YOUNG v. HOLDER 11287
not apply. Judge Ikuta’s dissent at 11305-06. But that provi-
sion merely allows the IJ to require corroborative evidence for
testimony presented by the applicant, even when the witness
is deemed credible.6 8 U.S.C. § 1229a(c)(4)(B); Rosas-
Castaneda, 655 F.3d at 884-85. It says nothing about opening
the door for additional evidence to supplement the documen-
tary record of conviction allowed under Shepard. Thus, noth-
ing in the text of the statute suggests that courts may depart
from the usual categorical and modified categorical
approaches when determining whether a prior conviction pre-
cludes eligibility for cancellation of removal. Moreover, in
explaining the modified categorical approach, the Supreme
Court has emphasized the importance of strictly limiting the
inquiry. See, e.g., Shepard, 544 U.S. at 23 (holding that strict
evidentiary limitations were “the heart” of the framework cre-
ated in Taylor).

Finally, even the dissent agrees that the modified categori-
cal approach applies here and that the IJ must “adjudicate
only the nature of the conviction.” Judge Ikuta’s dissent at
11316-17, 11319-20. But the additional evidence that the dis-
sent would have the IJ consider is largely irrelevant to the
question that matters for the modified categorical approach.
Under the modified categorical approach, determining the
nature of the conviction means deciding which elements a
jury “was actually required to find” or which elements the
guilty plea “necessarily admitted.” Aguila-Montes de Oca,
655 F.3d at 920-21 (emphasis omitted). Extraneous evidence,
such as police reports or the alien’s testimony, cannot answer
that precise legal question.
6
Aliens have the burden of establishing many requirements to demon-
strate eligibility for cancellation of removal, and they may introduce testi-
mony to establish, for instance, that they had “good moral character
during” their presence in the United States or “that removal would result
in exceptional and extremely unusual hardship to the alien’s spouse, par-
ent, or child.” 8 U.S.C. § 1229b(b)(1).
11288 YOUNG v. HOLDER
Accordingly, in conducting the modified categorical analy-
sis to determine whether Petitioner was convicted of an aggra-
vated felony, we may rely only on the documents allowed
under Shepard.

2. Under the modified categorical approach, a guilty plea
to a conjunctive count does not necessarily admit every
possible version of the crime.

[7] Under the Shepard limitations, the only relevant docu-
ment before the BIA was the criminal information. To reiter-
ate, it alleged that Petitioner

did unlawfully transport, import into the State of
California, sell, furnish, administer, and give away,
and offer to transport, import into the State of Cali-
fornia, sell, furnish, administer, and give away, and
attempt to import into the State of California and
transport a controlled substance, to wit, COCAINE
BASE.

The question thus becomes whether, under the modified cate-
gorical approach, Petitioner’s guilty plea constitutes an admis-
sion of transporting, importing, selling, furnishing,
administering, and giving away cocaine, and offering or
attempting to do those things, or whether, instead, it simply
establishes that he was convicted for at least one of those acts.
In other words, if a defendant pleads guilty to “A and B,”
where either “A” or “B” is sufficient to sustain a state convic-
tion but only the commission of “A” would constitute a
generic federal offense, then, under the modified categorical
approach, did the defendant necessarily admit both “A” and
“B"?

[8] A threshold consideration is whether we are to answer
that question under federal law or under state law. We hold
that federal law principles determine the effect of a guilty plea
under the modified categorical approach. To apply the dispa-
 YOUNG v. HOLDER 11289
rate rules of the many possible convicting jurisdictions—
potentially from each of the 50 states, the territories, and
many foreign countries—would undermine the principles of
uniformity and simplicity that led the Supreme Court to adopt
the categorical approach in Taylor. See Aguila-Montes de
Oca, 655 F.3d at 964 (Berzon, J., concurring in judgment)
(observing that applying state procedural rules to determine
whether non-elemental facts are admitted by a defendant’s
guilty plea adds a “layer of dis uniformity in the application
of the modified categorical approach”). Moreover, applying
federal principles rather that state law rules to determine the
effect of a guilty plea conserves judicial resources and pre-
vents inter-circuit splits over the interpretation of state proce-
dural rules.7 We turn, then, to our inconsistent precedents,
which implicitly applied federal law as we now explicitly do.

[9] Our jurisprudence contains two lines of cases, each
providing a different approach. Compare Snellenberger, 548
F.3d at 701 (holding that a guilty plea to a conjunctively
phrased information constitutes an admission of all the allega-
tions contained therein),8 with Malta-Espinoza, 478 F.3d at
7
We still may look to state law to understand the meaning of a state-
specific type of plea to a state criminal charge. For example, in United
States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc), we relied
on California law to determine that, “in the context of a People v. West
plea [in a California state court], a court is not limited to accepting a guilty
plea only to the offense charged but can accept a guilty plea to any reason-
ably related lesser offense.” (Internal quotation marks and brackets omit-
ted.) In other words, we consulted state law to understand that a West plea
might constitute a guilty plea to one of several offenses, including conduct
other than that alleged in the charging document. Id. at 1088. Whether a
guilty plea to an overly inclusive conjunctive charge suffices to establish
conviction for a generic federal crime is, however, a question of federal
law.
8
See also Aguila-Montes de Oca, 655 F.3d at 945 (concluding, without
analysis, that “[w]hen a defendant pleads guilty to a count, he admits the
factual allegations stated in that count”); United States v. Williams, 47
F.3d 993, 995 (9th Cir. 1995) ("When a defendant pleads guilty . . . to
facts stated in the conjunctive, each factual allegation is taken as true.”
11290 YOUNG v. HOLDER
1082 n.3 (holding that a guilty plea to a conjunctively phrased
charging document alleging several theories of the crime does
not constitute an admission to all of the alternate theories).9
We now adopt the Malta Espinoza line of cases and hold that,
under the modified categorical approach, when a conjunc-
tively phrased charging document alleges several theories of
the crime, a guilty plea establishes conviction under at least
one of those theories, but not necessarily all of them.

The nature of the modified categorical framework suggests
that, when a defendant pleads guilty to a charging document
alleging “A and B,” that plea implies a conviction for “A” or
“B.” Under the modified categorical approach, we must “de-
termine whether a guilty plea to an offense defined by a non-
generic statute necessarily admitted elements of the generic
offense.” Aguila-Montes de Oca, 655 F.3d at 921 (emphasis
added) (internal quotation marks omitted). We have held that
a guilty plea “is an admission of each and every element
required to establish the offense.” United States v. Kidder,
869 F.2d 1328, 1332-33 (9th Cir. 1989). “The effect is the
same as if appellant had been tried before a jury and had been
found guilty on evidence covering all of the material facts.”

(citing United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987));
Mathews, 833 F.2d at 163 (“The effect of a guilty plea is well established:
it is an admission of all the elements of a formal criminal charge and con-
clusively admits all factual allegations of the indictment.” (internal quota-
tion marks and citation omitted)).
9
See also Vidal, 504 F.3d at 1088-89 (holding that a guilty plea to an
overly inclusive charge does not establish that the defendant was con-
victed of a generic crime); Penuliar v. Mukasey, 528 F.3d 603, 612-14
(9th Cir. 2008) (same); United States v. Forrester, 616 F.3d 929, 945 (9th
Cir. 2010) (noting that the court “declin[es] to treat guilty pleas as admit-
ting factual allegations in the indictment not essential to the government’s
proof of the offense” (internal quotation marks omitted)); United States v.
Cazares, 121 F.3d 1241, 1248 (9th Cir. 1997) (holding that the effect of
a guilty plea is limited “to an admission of the facts essential to the valid-
ity of the conviction”).
 YOUNG v. HOLDER 11291
United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971) (per
curiam).

But, when an indictment charges several theories of the
same crime, proof of any one of those theories would be suffi-
cient to establish the offense. When the underlying statute
proscribes more than one act disjunctively, it is common for
prosecutors to charge in the conjunctive, yet it is well estab-
lished that, to prove such a charge, a prosecutor need only
prove in the disjunctive—one version of the crime. Malta-
Espinoza, 478 F.3d at 1082. In other words, when a statute
proscribes “A or B,” a prosecutor who indicts a defendant on
a charge of “A and B” need only prove “A” or “B” in order
to achieve a conviction. See United States v. Booth, 309 F.3d
566, 572 (9th Cir. 2002) (“When a statute specifies two or
more ways in which an offense may be committed, all may be
alleged in the conjunctive in one count and proof of any one
of those conjunctively charged acts may establish guilt.”).

Thus, when an indictment charges several theories, admis-
sion of any one of those theories constitutes “an admission of
each and every element required to establish the offense.”
Kidder, 869 F.2d at 1332-33. The implication is that

allegations not necessary to be proved for a convic-
tion . . . are not admitted by a plea. Any other rule
would be inconsistent with the rationale underlying
these decisions that the effect of a guilty plea is the
same as if defendant had been tried before a jury and
had been found guilty on evidence covering all of
the material facts.

Cazares, 121 F.3d at 1247 (internal quotation marks and
brackets omitted). The fact that a guilty plea admits all ele-
ments necessary to sustain a conviction does not imply that it
also admits all unnecessary or duplicative elements charged as
alternative theories of the crime.
11292 YOUNG v. HOLDER
Indeed, holding that pleading guilty to a charging document
that alleges “A and B” necessarily admits “A” and “B” would
create inconsistency in the application of the modified cate-
gorical framework to jury convictions and guilty pleas. We
have held that, under the modified categorical approach, a
defendant found guilty by a jury under an indictment alleging
“A and B” was not necessarily convicted of both “A” and
“B.” United States v. Espinoza-Morales, 621 F.3d 1141,
1149-52 (9th Cir. 2010). In those circumstances, assuming
that “A” would qualify as a predicate offense and “B” would
not, the jury was not “actually required to find all the ele-
ments” of the generic crime, because the jury could have
based its conviction on the defendant’s commission of “B”
alone. Id. at 1151 (emphasis added) (internal quotation marks
omitted); see id. at 1149-50 (holding that the prior conviction
for sexual battery did not fit the federal definition because,
“[e]ven though the state charged [the defendant] in the
conjunctive—with accomplishing the penetration by means of
force, violence, duress, menace and fear—this charge could
have supported a conviction based on duress alone”). Unless
the jury’s verdict form specified (or the jury instructions made
clear) that the finding of guilt necessarily rested on the defen-
dant’s commission of “A,” the conviction would not qualify
as a predicate offense. Id. at 1150-52. Similarly, a defendant
who pleads guilty to “A and B” should not be held to have
necessarily admitted either allegation, unless other docu-
ments, such as the defendant’s statements at the plea collo-
quy, establish a narrower basis for the conviction.

The foregoing conclusion comports with the decisions of
our sister circuits that have considered the issue under federal
law. The Third and Fourth Circuits have held that, under the
modified categorical approach, a defendant who pleads guilty
to “A and B” does not admit both “A” and “B.” United States
v. Vann, 660 F.3d 771, 774 (4th Cir. 2011) (en banc) (per
curiam); Valansi v. Ashcroft, 278 F.3d 203, 214, 216-17 &
n.10 (3d Cir. 2002). Instead, the plea establishes conviction
for “A” or “B,” so a record of conviction consisting solely of
 YOUNG v. HOLDER 11293
the charging instrument would be inconclusive. Vann, 660
F.3d at 774; Valansi, 278 F.3d at 214, 216-17 & n.10. Of
course, if the defendant admitted either “A” or “B” during the
plea colloquy, that would constitute an admission of the par-
ticular conduct. Cf. Valansi, 278 F.3d at 214 (scrutinizing the
plea colloquy to determine whether the defendant admitted
fraudulent intent when the indictment charged the defendant
with “intent to injure and defraud”). The Fifth Circuit has
reached the same conclusion, although it has sometimes relied
on state law to do so. See United States v. Morales-Martinez,
496 F.3d 356, 359-60 (5th Cir. 2007) (relying on state law);
see also Omari v. Gonzales, 419 F.3d 303, 308 & n.10 (5th
Cir. 2005) (apparently relying on federal law to hold that a
defendant who pleads guilty to “interstate transportation of
stolen, converted and fraudulently obtained property” does
not necessarily admit to transporting fraudulently obtained
property).

The Eighth and Tenth Circuits have reached the opposite
conclusion, holding that pleading guilty to “A and B” neces-
sarily establishes “A” and “B,” but both courts relied on state
law to reach that result. United States v. Ojeda-Estrada, 577
F.3d 871, 877 (8th Cir. 2009); United States v. Torres-
Romero, 537 F.3d 1155, 1159-60 & n.2 (10th Cir. 2008).
Because we have held that federal law applies to this issue,
we do not find the Eighth and Tenth Circuits’ decisions per-
suasive. Furthermore, Federal Practice and Procedure states
that the “better rule” is the one that treats the plea as “an
admission of only those facts that are essential to the convic-
tion.” 1A The Late Charles A. Wright et al., Federal Practice
and Procedure § 172 (4th ed. 2012).

[10] In sum, when either “A” or “B” could support a con-
viction, a defendant who pleads guilty to a charging document
alleging “A and B” admits only “A” or “B.” Thus, when the
record of conviction consists only of a charging document
that includes several theories of the crime, at least one of
which would not qualify as a predicate conviction, then the
11294 YOUNG v. HOLDER
record is inconclusive under the modified categorical
approach.

[11] Applying that rule to this case reveals that the record
is inconclusive as to whether Petitioner was convicted of an
aggravated felony. Petitioner pleaded guilty to a conjunctively
phrased indictment that alleged several theories of the crime,
any one of which would have sustained a state conviction, but
only some of which would constitute an aggravated felony.
Because we cannot tell from the record of conviction whether
Petitioner was convicted of selling cocaine, which is an aggra-
vated felony under 8 U.S.C. § 1101(a)(43)(B), or merely of
solicitation, which is not, Petitioner’s record of conviction is
inconclusive. See Rosas-Castaneda, 655 F.3d at 885 (holding
that solicitation offenses do not constitute aggravated felonies
under 8 U.S.C. § 1101(a)(43)(B)).

3. An inconclusive record of conviction does not satisfy
Petitioner’s burden to demonstrate eligibility for can-
cellation of removal.

[12] The REAL ID Act places the burden of demonstrating
eligibility for cancellation of removal squarely on the nonciti-
zen. 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d). Under the
Act, the alien “shall have the burden of establishing that he or
she is eligible for any requested benefit or privilege.” 8 C.F.R.
§ 1240.8(d). Thus, “[i]f 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 burden of prov-
ing by a preponderance of the evidence that such grounds do
not apply.” Id. (emphasis added). To demonstrate eligibility
for cancellation of removal, the petitioner must show that he
or she “has not been convicted of any aggravated felony.” 8
U.S.C. § 1229b(a)(3). By placing the burden on the alien to
show that prior convictions do not constitute aggravated felo-
nies, the REAL ID Act established that an inconclusive record
of conviction does not demonstrate eligibility for cancellation
of removal, notwithstanding our holdings to the contrary in
 YOUNG v. HOLDER 11295
Sandoval-Lua, 499 F.3d at 1130, and Rosas-Castaneda, 655
F.3d at 886.

In the removal context, the government bears the burden of
establishing deportablility. Young Sun Shin v. Mukasey, 547
F.3d 1019, 1024 (9th Cir. 2008). When the record of convic-
tion is inconclusive, “the government has not met its burden
of proof, and the conviction may not be used for purposes of
removal.” Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir.
2004). It makes equal sense that when the burden rests on the
alien to show eligibility for cancellation of removal, an incon-
clusive record similarly is insufficient to satisfy the alien’s
burden of proof. See Salem v. Holder, 647 F.3d 111, 115-16
(4th Cir. 2011) (holding that an inconclusive record is insuffi-
cient to carry the alien’s burden of demonstrating eligibility
for cancellation of removal), cert. denied, 132 S. Ct. 1000
(2012); Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir.
2009) (same). But see Martinez v. Mukasey, 551 F.3d 113,
122 (2d Cir. 2008) (holding that an inconclusive record satis-
fies the alien’s burden).

[13] This result comports with our general understanding
of the burden of persuasion, which determines “which party
loses if the evidence is closely balanced.” Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 56 (2005). The party who
bears the burden runs “the risk of non-persuasion.” Overman
v. Loesser, 205 F.2d 521, 523 (9th Cir. 1953); see also
Black’s Law Dictionary 223 (9th ed. 2009) (“[B]urden of
proof denotes the duty of establishing by a fair preponderance
of the evidence the truth of the operative facts upon which the
issue at hand is made to turn by substantive law.” (internal
quotation marks omitted)). Here, the critical inquiry is
whether the alien was convicted of a predicate crime. Because
the burden of proof rests on the alien, the alien must establish
that he or she was not convicted of such a crime. If the evi-
dence is “closely balanced,” Schaffer, 546 U.S. at 56, the
alien cannot carry that burden. By demonstrating that the
record of conviction is inconclusive, the alien has failed to
11296 YOUNG v. HOLDER
establish the absence of a predicate crime. Instead, the alien
has simply demonstrated that the evidence about the nature of
the conviction is in equipoise. The alien therefore cannot
carry the burden of proof with an inconclusive record.

The dissent on this point argues that it is unfair to require
aliens to demonstrate that they have not been convicted of a
predicate crime and to require them to rely only on certain
state court records in doing so. Although some aliens will
surely face challenges using only the Shepard documents to
prove that they were not convicted of a predicate crime, that
result is not so absurd that Congress could not have intended
it. The dissent’s contrary conclusion boils down to its belief
that, because of the imbalance of power between the alien and
the state, the alien should receive the benefit of the doubt
when the record is inconclusive. But the plain text of the stat-
ute dictates otherwise. By definition, the party who bears the
burden of proof does not get the benefit of the doubt. Here,
Congress has placed the burden on the alien; to give the alien
the benefit of the doubt would thus contravene Congress’
plainly expressed intent.

[14] In summary, the REAL ID Act makes clear that the
alien bears the burden of demonstrating eligibility for cancel-
lation of removal. It would be inconsistent with our general
understanding of the burden of proof to allow the alien to
meet that burden by establishing only an inconclusive record.
To the extent that Sandoval-Lua and Rosas-Castaneda allow
the alien to do so, they are hereby overruled. A petitioner can-
not carry the burden of demonstrating eligibility for cancella-
tion of removal by establishing an inconclusive record of
conviction.

[15] Applying that rule to this case, it is clear that Peti-
tioner has failed to meet his burden of demonstrating eligibil-
ity for cancellation of removal. The record of conviction, as
discussed above, is inconclusive, because Petitioner pleaded
guilty to a charging document alleging 14 different theories of
 YOUNG v. HOLDER 11297
how he could have violated California Health & Safety Code
section 11352(a), some—but not all—of which would qualify
as aggravated felonies. It is possible that Petitioner’s prior
conviction constitutes an aggravated felony; it is also possible
that it does not. But Petitioner bears the burden of demonstrat-
ing that he was not convicted of an aggravated felony, and he
has failed to do so. The BIA therefore correctly denied Peti-
tioner’s application for cancellation of removal.

PETITION DISMISSED IN PART, DENIED IN PART.

B. FLETCHER, Circuit Judge, concurring in part and dissent-
ing in part, with whom SCHROEDER, PREGERSON,
FISHER, and PAEZ, Circuit Judges, join:

I join the majority opinion except as to discussion section
B.3. I respectfully dissent from the court’s decision to over-
rule Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th
Cir. 2007), and Rosas-Castaneda v. Holder, 655 F.3d 875,
883-84 (9th Cir. 2011). The majority view on this issue leads
to a result that is unjust to lawful permanent residents seeking
cancellation of removal and that Congress cannot have
intended.

Our opinion in Sandoval-Lua is thorough and well-
reasoned. In it we considered whether a lawful permanent res-
ident who was removable based on a conviction for a con-
trolled substance offense could seek cancellation of removal.
Sandoval-Lua, 499 F.3d at 1123-24. We began by determin-
ing that Sandoval-Lua’s California conviction (under a statu-
tory provision virtually identical to the one under which
Young was convicted) was not categorically an aggravated
felony because the California statute criminalizes conduct not
covered by the federal Controlled Substances Act. Id. at 1128.
Next, we turned to the modified categorical approach and
found, as in Young’s case, that the judicially noticeable docu-
11298 YOUNG v. HOLDER
ments were inconclusive as to the nature of Sandoval-Lua’s
conviction. Id. at 1129.

Finally, we held that Sandoval-Lua had “affirmatively
proven under the modified categorical analysis that he was
not necessarily ‘convicted of any aggravated felony.’ ” Id. at
1130 (quoting 8 U.S.C. § 1229b(a)(3)). In doing so, we made
clear that we had considered that Sandoval-Lua bore the bur-
den of proof under 8 C.F.R. § 1240.8, but that under the cate-
gorical approach there are only two possible results: the
record of conviction either establishes that the applicant was
necessarily convicted of an aggravated felony or the record
does not. Id. at 1131-32. We correctly explained that the evi-
dentiary limits imposed by Taylor v. United States, 495 U.S.
575 (1990), and Shepard v. United States, 544 U.S. 13 (2005),
are not merely practical—they also cabin the court’s inquiry
to the correct legal question, which is whether the lawful per-
manent resident has been “convicted” of an aggravated fel-
ony, not whether he engaged in conduct that falls within the
definition of an aggravated felony. Id. at 1131-32; see also
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 (2010)
(explaining that the text of 8 U.S.C. § 1229b(a)(3) directs
courts to determine the nature of the lawful permanent resi-
dent’s conviction, not his conduct).

We recently considered whether the REAL ID Act changed
Sandoval-Lua’s result, and we concluded that it did not.
Rosas-Castaneda, 655 F.3d at 884. As we explained in Rosas-
Castaneda, 8 U.S.C. § 1229a(c)(4)(A) merely codified the
burden of proof imposed on the alien by 8 C.F.R. § 1240.8,
which we carefully analyzed in Sandoval-Lua. Id. at 883-84;
see also H.R. Rep. No. 109-72, at 169 (2005) (Conf. Rep.)
(“The new paragraph also codifies the current requirement
that an alien applying for relief or protection from removal
bears the burden of satisfying the eligibility requirements for
that relief or protection, and also that he or she merits the
relief as a matter of discretion, if the relief is discretionary.”
(emphasis added)). We should adhere to our prior precedents
 YOUNG v. HOLDER 11299
and hold that Young’s inconclusive record of conviction car-
ried his burden of proof.

For the reasons that the majority opinion elegantly sets out,
it makes no sense to discard the categorical approach or Shep-
ard’s limitation on the documents to be considered in deter-
mining whether a lawful permanent resident has been
convicted of an aggravated felony. But I cannot agree that
Congress intended that an application for cancellation of
removal be decided on the basis of whether state court records
happen to be sufficiently clear to prove a negative (i.e. that
the lawful permanent resident was not convicted of an aggra-
vated felony). Indeed, the clarity of state court plea or convic-
tion records will often depend upon the habits and preferences
of the individual trial judge and the clerk of the court. The
decision to remove a lawful permanent resident from this
country should not turn on the vagaries of state court record
keeping.

Even in cases where there exist state court records conclu-
sively showing that a conviction was not for an aggravated
felony, applicants may be unable to obtain them for a variety
of reasons—for example, because of language barriers, a lack
of information about the court system, their detained status, or
an inability to pay fees for copies of court records. In contrast,
the government has access to such documents. As Young
points out, the law frequently places the burden of production
on the party in the better position to obtain the evidence, even
when the opposing party bears the burden of proof.1 See, e.g.,
United States v. Cortez-Rivera, 454 F.3d 1038, 1041 (9th Cir.
2006) (“Burdens are generally placed on the party who is in
1
The term “burden of proof” encompasses “two separate burdens: the
‘burden of persuasion’ (specifying which party loses if the evidence is bal-
anced), as well as the ‘burden of production’ (specifying which party must
come forward with evidence at various stages in the litigation).” Microsoft
Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2245 n.4 (2011). That the gov-
ernment bears the burden of production does not shift the burden of per-
suasion, which still rests with the applicant.
11300 YOUNG v. HOLDER
the best position to present the evidence.”); Dubner v. City &
Cnty. of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001).
Our current rule effectively does just that, by creating an
incentive for government attorneys to obtain all relevant con-
viction documents and provide them to the IJ in removal pro-
ceedings. Under the majority’s approach, however, the
government may produce only minimal state court records
sufficient to show that a person is removable on some ground
other than conviction for an aggravated felony—for example,
conviction for a drug crime. The burden then shifts to the
legal permanent resident to prove a negative—that he has not
been convicted of an aggravated felony. See 8 C.F.R.
§ 1240.8(d). The government can stand by as the lawful per-
manent resident attempts to produce further records of convic-
tion, which the government may already have or be able to
obtain more easily.

Young’s case illustrates the mischief that the majority’s
rule will work. The government submitted to the IJ records
relating to Young’s two California drug convictions. Those
records were insufficient to establish that Young had been
convicted of an aggravated felony under the modified categor-
ical approach. After the panel decided this case, the govern-
ment obtained a transcript of Young’s 2005 guilty plea.
Contrary to the government’s assertions, there was no reason
it could not have obtained the transcript six years ago and
presented it to the IJ in order to establish that Young was con-
victed of an aggravated felony. If the government had done
so, it would have increased the reliability of the administrative
decision in this case and likely avoided years of appellate liti-
gation.

My concern, however, is what will happen in a future case
where a transcript or other state court record contains infor-
mation helpful to a pro se detained immigrant. Suppose a law-
ful permanent resident pleaded guilty to a charging document
alleging that he did A and B, where only B would constitute
an aggravated felony. There is a plea transcript that makes
 YOUNG v. HOLDER 11301
clear that the lawful permanent resident pleaded guilty to A
but not B. If the government does not produce that transcript,
which its attorneys may have no reason to do, how will the
lawful permanent resident be able to locate it, or even know
that it exists? That lawful permanent resident will be denied
the opportunity to even try to show that he merits a favorable
exercise of the attorney general’s discretion through a grant of
cancellation of removal. Congress cannot have intended such
an arbitrary result.

Sandoval-Lua and Rosas-Castaneda harmonized
§ 1229a(c)(4) and § 1229b(a)(3) by placing the burden of
proof squarely on the applicant for cancellation of removal,
but requiring that the kind and quantum of evidence necessary
to carry that burden be evaluated in light of the evidentiary
limits imposed by the modified categorical approach. I would
remain faithful to those well-reasoned precedents, which com-
port with the demands of fairness.

IKUTA, Circuit Judge, concurring in part and dissenting in
part, with whom KLEINFELD, CLIFTON, and BEA, Circuit
Judges, join:

In today’s splintered decision, a two-judge “majority”1
holds that Congress intended strict and arbitrary evidentiary
1
It is useful to summarize how the voting has led us to this strange
result. Seven judges (the two who join Judge Graber’s opinion and the five
who join Judge Fletcher’s opinion) agree that the evidentiary limitations
articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply to
aliens seeking to prove their eligibility for cancellation of removal. Six
judges (the two who join Judge Graber’s opinion and the four who join my
opinion) agree that an alien cannot meet the burden of showing such eligi-
bility by a preponderance of the evidence by simply establishing that the
alien’s record of conviction is inconclusive. Only two judges agree with
both of these holdings, but the resulting pastiche forms the unconven-
tional, and as I explain later, illogical, “majority.”
11302 YOUNG v. HOLDER
limitations to be read into the cancellation of removal statute,
despite the fact that the statute clearly states an alien’s rights
to introduce evidence and testimony. Correctly recognizing
that the “majority’s” holding is absurd, five judges have voted
to alleviate the inherent unfairness by redefining the statutory
language to mean the exact opposite of what it actually says.
Both approaches are wrong: both are contrary to the plain lan-
guage of the statute, and both reach outcomes that are neither
contemplated by Congress nor dictated by common sense. I
therefore dissent from the en banc decision as a whole, and I
write separately to demonstrate why this confusion could have
been avoided if we had just followed what the statute says.

I

The question before the court is whether the BIA erred in
holding that Joseph Young, a lawful permanent resident, was
ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a). Young asserts that even if he is removable, the
BIA and IJ erred in concluding that he did not meet his bur-
den of proving eligibility for cancellation of removal because
he had necessarily been convicted of an aggravated felony.
Young notes that section 11352(a) of the California Health &
Safety Code,2 his crime of conviction, criminalizes mere
solicitation or offer to sell a controlled substance, which is not
an aggravated felony, see United States v. Rivera-Sanchez,
247 F.3d 905, 908-09 (9th Cir. 2001) (en banc), as well as the
sale of that substance, which is one. Because the relevant
records do not establish that his conviction under section
2
California Health & Safety Code § 11352(a) states, in pertinent part:
Except as otherwise provided in this division, every person who
transports, imports into this state, sells, furnishes, administers, or
gives away, or offers to transport, import into this state, sell, fur-
nish, administer, or give away, or attempts to import into this
state or transport [a designated controlled substance] shall be
punished by imprisonment pursuant to subdivision (h) of Section
1170 of the Penal Code for three, four, or five years.
 YOUNG v. HOLDER 11303
11352(a) was for selling a controlled substance (cocaine), as
opposed to offering to sell it, Young argues that the record is
inconclusive on the crucial question whether he was convicted
of an aggravated felony, and therefore he remains eligible for
cancellation of removal.

A

Cancellation of removal is a form of relief that is granted
and governed by the Immigration and Nationality Act (INA),
and it is upon that statute that our analysis should focus.
Under 8 U.S.C. § 1229b, the Attorney General may cancel
removal of an alien who has been determined to be inadmissi-
ble or removable from the United States if the alien meets
three statutory criteria. 8 U.S.C. § 1229b(a).3 One of these
criteria is that the alien not have been “convicted of any
aggravated felony,” id. § 1229b(a)(3), which is defined in
§ 1101(a)(43)(B) as “including a drug trafficking crime (as
defined in section 924(c) of Title 18).” A conviction for the
sale of cocaine (which is listed as offense conduct in section
11352(a)), qualifies as an “aggravated felony” because such
an offense meets the federal definition of “drug trafficking
crime” in 18 U.S.C. § 924(c).4
3
With respect to eligibility for cancellation of removal, § 1229b(a) pro-
vides:
The Attorney General may cancel removal in the case of an alien
who is inadmissible or deportable from the United States if the
alien—
(1) has been an alien lawfully admitted for permanent residence
for not less than 5 years,
(2) has resided in the United States continuously for 7 years after
having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
In addition, the alien must merit a favorable exercise of discretion. See 8
U.S.C. § 1229a(c)(4)(ii).
4
Section 924(c)(2) defines a “drug trafficking crime” as including “any
felony punishable under the Controlled Substances Act,” codified at 21
11304 YOUNG v. HOLDER
The REAL ID Act of 2005 amended the INA to codify the
procedures for reviewing an alien’s application for cancella-
tion of removal, adding 8 U.S.C. § 1229a(c)(4).5 See Pub. L.
No. 109-13, § 101(d), 119 Stat. 304. These amendments
impose on the alien the burden of proving eligibility for can-
cellation of removal, including proving that the alien was not

U.S.C. § 801 et seq., which makes it unlawful to “manufacture, distribute,
or dispense, or possess with intent to manufacture, distribute, or dispense,
a controlled substance,” 21 U.S.C. § 841(a), and imposes a maximum term
of imprisonment of at least twenty years when the violation involves a
Schedule II substance such as cocaine, see id. § 841(b)(1)(C). See also 18
U.S.C. § 3559(a) (classifying as felonies offenses in which the maximum
term of imprisonment is more than one year).
5
8 U.S.C. § 1229a(c)(4) states, in pertinent part:
(4) Applications for relief from removal
(A) In general
An alien applying for relief or protection from removal has the
burden of proof to establish that the alien—
(i) satisfies the applicable eligibility requirements; and
(ii) with respect to any form of relief that is granted in the exer-
cise of discretion, that the alien merits a favorable exercise of dis-
cretion.
(B) Sustaining burden
The applicant must comply with the applicable requirements to
submit information or documentation in support of the appli-
cant’s application for relief or protection as provided by law or
by regulation or in the instructions for the application form. In
evaluating the testimony of the applicant or other witness in sup-
port of the application, the immigration judge will determine
whether or not the testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the applicant has
satisfied the applicant’s burden of proof. In determining whether
the applicant has met such burden, the immigration judge shall
weigh the credible testimony along with other evidence of record.
Where the immigration judge determines that the applicant
should provide evidence which corroborates otherwise credible
testimony, such evidence must be provided unless the applicant
demonstrates that the applicant does not have the evidence and
cannot reasonably obtain the evidence.
 YOUNG v. HOLDER 11305
convicted of a drug trafficking crime that constitutes an
aggravated felony. See 8 U.S.C. § 1229a(c)(4)(A) (“An alien
applying for relief or protection from removal has the burden
of proof to establish that the alien—(i) satisfies the applicable
eligibility requirements.”); see also 8 C.F.R. § 1240.8(d) (“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 burden of proving by a preponderance of
the evidence that such grounds do not apply.”).

The INA grants an alien in removal proceedings the right
“to present evidence on the alien’s own behalf.” 8 U.S.C.
§ 1229a(b)(4)(B). The REAL ID Act amendments further
delineated the type of evidence that an alien may or must pro-
duce in order to carry the alien’s burden of proving eligibility
for cancellation of removal. See id. § 1229a(c)(4)(B). Section
1229a(c)(4)(B) allows and even requires the alien to introduce
a wide range of “information” as well as documents to estab-
lish the nature of a prior conviction. Among other things, the
statute requires the alien to “submit information or documen-
tation . . . as provided by the instructions for the application
form” for cancellation of removal (EOIR-42B). Id. The
EOIR-42B application requires the applicant to “fully and
accurately answer all questions,” to provide responses “as
detailed and complete as possible,” and to attach “any docu-
ments that demonstrate your eligibility for cancellation of
removal,” including documents “which reflect” convictions.
EOIR-42B, available at http://www.justice.gov/eoir/
eoirforms/eoir42b.pdf. Further, the application requires the
applicant to attest to whether the alien has ever been con-
victed of any “felony, misdemeanor, or breach of any public
law or ordinance” and to give a “brief description of each
offense, including the name and location of the offense, date
of conviction, any penalty imposed, any sentence imposed,
and the time actually served.” Id. By statute, the IJ is to con-
sider all such information in determining the alien’s eligibility
for cancellation of removal. See 8 U.S.C. § 1229a(c)(4)(B)
(“In determining whether the applicant has met [the] burden,
11306 YOUNG v. HOLDER
the immigration judge shall weigh the credible testimony
along with other evidence of record.”). The statute also con-
templates that the alien may testify at the immigration pro-
ceedings, and it allows the IJ to require the applicant to
“provide evidence which corroborates otherwise credible tes-
timony.” Id. Providing such corroborative evidence is excused
only if “the applicant demonstrates that the applicant does not
have the evidence and cannot reasonably obtain the evi-
dence.” Id.

Accordingly, the plain language of the statute requires the
alien to carry the burden of proving eligibility for cancellation
of removal, which includes establishing that the alien had not
been convicted of an aggravated felony. The statute, however,
also gives the alien the correlative right to introduce a full
range of evidence to carry this burden.

B

Under this cancellation of removal framework, Young had
the burden to prove (among other things) that he had not been
convicted of any aggravated felony. 8 U.S.C. § 1229a(c)(4);
see also § 1229b(a)(3). Specifically, Young’s record of con-
viction establishes that he was convicted for violating Califor-
nia Health & Safety Code § 11352(a). At least some ways of
committing that offense qualify as aggravated felonies. Under
the framework set out in 8 U.S.C. § 1229a, in order to carry
his burden of proving that his conviction was not for a generic
federal drug trafficking offense, Young must establish by a
preponderance of the evidence that his conviction was for
offering to sell cocaine, rather than selling it.

This leads to our central inquiry here: how should a court
determine whether an alien has carried the burden of proving
that a state conviction does not constitute an aggravated fel-
ony for purposes of the INA?

The Supreme Court originally addressed the issue of how
to compare state convictions to generic federal offenses in the
 YOUNG v. HOLDER 11307
context of criminal law. In Taylor v. United States, the
Supreme Court considered the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), which provides that a defendant
is subject to a sentence enhancement if the defendant had
three prior convictions for certain generic federal felonies.
495 U.S. 575, 578 (1990). The Supreme Court developed an
analytic tool, now commonly referred to as the Taylor cate-
gorical approach, for determining if a state conviction quali-
fied as a listed federal felony for purposes of ACCA. Under
the categorical approach, a court must first derive from vari-
ous sources the elements of the generic federal offense. See
id. at 598-99. Next, the court must make a legal assessment
as to whether the state statute of conviction is a categorical
match to the generic federal offense. See id. at 599. This
means that the court first compares the state statute to the
generic federal offense to determine if (1) the state has
adopted the generic federal definition or (2) the state statute
criminalizes less conduct than does the generic federal
offense. If so, “the conviction necessarily implies that the
defendant has been found guilty of all the elements of [the
generic offense].” Id.

If, on the other hand, the state statute criminalizes more
conduct than is included in the generic federal crime, a court
may use a modified categorical approach in making its legal
assessment of whether the defendant had necessarily been
found guilty of all the elements of the generic offense. See
United States v. Aguila-Montes de Oca, 655 F.3d 915, 920
(9th Cir. 2011) (en banc). In other words, when a state statute
explicitly or implicitly criminalizes several different ways to
commit an offense, only some of which are included in the
generic federal crime, a court may consider the particular acts
the defendant committed in order to determine “which statu-
tory phrase . . . covered a prior conviction.” Nijhawan v.
Holder, 557 U.S. 29, 41 (2009); see also Aguila-Montes de
Oca, 655 F.3d at 924-25, 937-38 (stating that if the record of
conviction establishes that the factfinder necessarily deter-
mined that the defendant satisfied an element of an offense
11308 YOUNG v. HOLDER
through (for example) use of a particular weapon, “then the
conviction ‘necessarily rested’ on this fact”). The court’s
inquiry is limited to determining the crime for which the
defendant was necessarily convicted, not whether the defen-
dant’s underlying conduct could have been charged as a
generic federal offense. See Carachuri-Rosendo v. Holder,
130 S. Ct. 2577, 2586 (2010); see also Aguila-Montes de Oca,
655 F.3d at 928 (“[I]t does not matter what acts the defendant
committed; rather, the relevant question is what he was con-
victed of.”).

Although the Taylor categorical approach and the modified
categorical approach arose in the criminal context, the
Supreme Court has also used these approaches in removal
proceedings under § 1227(a)(2)(A)(iii) to determine whether
an alien’s prior conviction constitutes an “aggravated felony”
as defined in § 1101(a)(43). In considering whether an alien’s
conviction for tax fraud qualified as an aggravated felony for
purposes of deportability under § 1227(a)(2)(A)(iii), for
instance, the Court clarified that it was using a “categorical
approach by looking to the statute defining the crime of con-
viction, rather than to the specific facts underlying the crime.”
See Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012); see
generally Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)
(assuming without deciding that the approach set forth in Tay-
lor applied to determining whether an alien had committed an
aggravated felony for analyzing removability under
§ 1227(a)(2)(A)).

In light of this legal framework, the method for analyzing
Young’s claim that he carried his burden of proving that his
state conviction did not constitute an aggravated felony for
purposes of the INA seems reasonably straightforward. Sec-
tion 11352(a), the state statute of conviction in this case,
criminalizes a list of offenses (such as selling, furnishing,
administering, and giving away designated controlled sub-
stances) that constitute aggravated felonies for purposes of
§ 1227(a)(2)(B)(i)), as well as a list of offenses (such as offer-
 YOUNG v. HOLDER 11309
ing to sell, furnish, administer, and give away those controlled
substances) that do not. Accordingly, because section
11352(a) criminalizes more conduct than is included in the
generic federal crime, a conviction under this section is not
categorically an aggravated felony. Nevertheless, if Young’s
conviction necessarily rested on conduct (such as sale of
cocaine) that would constitute an aggravated felony under
§ 1227(a)(2)(B)(i), he would still be ineligible for cancellation
of removal.

At the immigration hearing, the government produced doc-
uments showing that Young’s plea of guilty was to an indict-
ment that listed the offenses in the conjunctive, including
offenses that would qualify as aggravated felonies as well as
those that would not. The IJ told Young that “one of your ele-
ments that you have to prove to show that you’re eligible for
cancellation of removal is that you do not have any aggra-
vated felony convictions” and invited him to produce a state
criminal court document showing that his felony was not an
aggravated felony. As the hearing transcript shows, Young
responded, “I pled guilty to one count of sale. I didn’t ple[a]d
guilty to trafficking or possession.” Thus the IJ properly
invited Young, as § 1229a(c)(4)(B) required, to introduce evi-
dence to show that he had not been convicted of an aggra-
vated felony. Young responded by testifying under oath that
he had in fact pleaded guilty to sale of narcotics, which was
an aggravated felony.

The BIA noted that Young had the burden to establish his
eligibility for relief, and that he had submitted documents
showing a request to the state criminal court for records that
might arguably have had the potential to assist him in his
claim, but the record did not show that he had received such
records or sought to submit them in his proceedings before the
IJ. The BIA recognized that Ninth Circuit law established the
proposition that Young’s own sworn admission that he had
committed an aggravated felony could not be considered.
Barred from the sensible course of relying on Young’s sworn
11310 YOUNG v. HOLDER
statements, the BIA followed the more dubious path of treat-
ing Young’s plea to a charge including both an aggravated
and a non-aggravated felony as a plea to both. Because the
evidentiary limitations imposed on the immigration court
were erroneous, I would not reach Young’s argument that
pleading guilty to Count 1, which listed the offense conduct
of § 11352(a) in the conjunctive, did not constitute a guilty
plea to every offense listed in the indictment.

Because “a judicial judgment cannot be made to do service
for an administrative judgment,” SEC v. Chenery Corp., 318
U.S. 80, 88 (1943), we should remand to allow such addi-
tional development of the record as the BIA may find neces-
sary, so that it may have the first opportunity to determine
whether a preponderance of the evidence proves that Young
has not been convicted of an aggravated felony. On remand,
the BIA should not be required to disregard Young’s own tes-
timony under oath that his conviction was for selling narcot-
ics. The BIA ought to be able to decide in the first instance
whether to credit Young’s admission that he had committed
an aggravated felony, or conceivably such additional docu-
ments or testimony as he may produce to show that his admis-
sion was mistaken.

II

But the majority of my colleagues have rejected the sim-
plicity and clarity of this approach for a single reason: they
believe that an alien may not submit the full range of evidence
allowed by § 1229a(c)(4)(B) when it comes to proving that a
conviction was not an aggravated felony. In the ACCA con-
text, the Supreme Court imposed strict evidentiary limitations,
allowing courts conducting a modified categorical inquiry to
consider only a “narrow and defined range of documents—the
indictment, jury instructions, judicial findings, plea agree-
ments, plea colloquies, and the like.” Aguila-Montes de Oca,
655 F.3d at 938.6 Judges Graber and Fletcher believe that
6
The Supreme Court first defined this range of documents in Shepard
v. United States, 544 U.S. 13, 16 (2005). We have further expanded the
 YOUNG v. HOLDER 11311
these evidentiary limitations apply here and trump the statu-
tory language of the INA.

Although both Judges Graber and Fletcher would ignore
the statute when it authorizes the IJ to consider a broad range
of evidence (and instead impose the ACCA evidentiary limi-
tations), they diverge as to the next step. Despite bypassing
the statute on the evidentiary issue, Judge Graber would
return to the statutory language when it requires placing the
burden of proof on the alien. See § 1229a(c)(4)(A). This
approach would require the alien to attempt to prove the
nature of a prior conviction without recourse to the alien’s
own testimony or other probative evidence. Judge Fletcher, on
the other hand, would avoid the patent unfairness of Judge
Graber’s approach by placing the burden of proof on the gov-
ernment, thus ignoring the statutory language on both points.

As explained below, both of these approaches are wrong.
Rather than taking the convoluted approach the en banc
majority takes today, we should answer the question before us
merely by applying the plain language of the statute.

A

The en banc majority goes wrong in erroneously assuming
that we must impose the ACCA evidentiary limitations in the
immigration context. Neither Congress nor the Supreme Court
has required us to do so. To the contrary, the Court derived
the ACCA evidentiary limitations from its statutory interpre-
tation of ACCA, which the Court read as allowing “only a
restricted look beyond the record of conviction.” Shepard,
544 U.S. at 23. In reaching this conclusion, the Court indi-

list of judicially cognizable documents in United States v. Snellenberger,
548 F.3d 699 (9th Cir. 2008) (en banc), and other decisions. The complete
set of judicially cognizable documents is sometimes referred to as “Shep-
ard documents.” See, e.g., Aguila-Montes de Oca, 655 F.3d at 935.
11312 YOUNG v. HOLDER
cated that it would be implausible to interpret ACCA as
requiring a court to engage in an adversarial process, involv-
ing witness testimony and review of prior trial transcripts, in
order to determine conduct underlying a prior conviction.
Taylor, 495 U.S. at 601-02. Moreover, such mini-trials are
potentially susceptible to a constitutional challenge as abridg-
ing the right to a jury trial. Id. at 601. As a plurality of the
Court later explained in more specific terms, “allowing a
broader evidentiary enquiry” might permit the sentencing
court to make “disputed finding[s] of fact,” thus possibly con-
flicting with the rule enunciated in Apprendi v. New Jersey
that a jury must make a finding “of any disputed fact essential
to increase the ceiling of a potential sentence.” Shepard, 544
U.S. at 24-25 (plurality opinion) (citing Apprendi v. New Jer-
sey, 530 U.S. 466, 490 (2000)).

The Court has been sensitive, however, to the different lan-
guage and purpose of the INA as compared to ACCA, and
thus it has not imposed the strict ACCA evidentiary limita-
tions in every immigration context. See, e.g., Nijhawan, 557
U.S. at 41-42. In Nijhawan, the Court considered whether an
alien’s convictions for conspiracy to commit mail fraud, wire
fraud, bank fraud, and money laundering constituted aggra-
vated felonies under the INA. See id. at 32. The INA defines
“aggravated felony” as including an offense that “involves
fraud or deceit in which the loss to the victim or victims
exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). Although
the alien had stipulated that the loss in his case exceeded $100
million and the restitution order was for $683 million, the
statute of conviction itself was silent as to loss. See Nijhawan,
557 U.S. at 32.

Rather than mechanically applying the modified categorical
approach exactly as it was developed in the criminal context,
the Court considered both the language of the INA and the
context of the proceedings at issue. After carefully construing
the INA’s “aggravated felony” statute, 8 U.S.C.
§ 1101(a)(43), as well as the specific language of
 YOUNG v. HOLDER 11313
§ 1101(a)(43)(M)(i), the Court determined that the INA dif-
fered from ACCA’s provisions in material ways. See Nijha-
wan, 557 U.S. at 36-40. In light of these differences, the Court
concluded that “Congress did not intend subparagraph
(M)(i)’s monetary threshold to be applied categorically, i.e.,
to only those fraud and deceit crimes generically defined to
include that threshold,” but instead intended the monetary
threshold to apply “to the specific circumstances surrounding
an offender’s commission of a fraud and deceit crime on a
specific occasion.” Id. at 40.

After deciding that the statutory language required the
immigration court to evaluate the specific circumstances of an
offense, the Court rejected the alien’s argument that “reasons
of fairness” should limit the court’s consideration to the Shep-
ard documents alone. Id. at 41-43. According to the alien,
“any broader examination of the prior proceedings” by the IJ
would “unfairly permit [the alien] to be deported on the basis
of circumstances that were not before judicially determined to
have been present and which he may not have had an opportu-
nity, prior to conviction, to dispute.” Id. at 41. But the Court
concluded that while “the statute foresees the use of funda-
mentally fair procedures, including procedures that give an
alien a fair opportunity to dispute a Government claim that a
prior conviction involved a fraud with the relevant loss to vic-
tims,” fairness did not require the ACCA evidentiary limita-
tions that the alien proposed. Id. at 41. Instead, it expressed
reliance on immigration judges’ ability to “ascertain the
nature of a prior conviction” without relitigating the convic-
tion itself. Id. at 42.

Nijhawan also called into question whether ACCA eviden-
tiary limitations necessary in the criminal context (where
courts must protect the defendant’s constitutional rights and
the government must prove its case beyond a reasonable
doubt) apply at all in the civil deportation context (which does
not implicate these constitutional rights and in which the stan-
dard of proof is much lower). See id. at 41-42. The Court
11314 YOUNG v. HOLDER
noted that, unlike in the criminal context of Taylor, “a depor-
tation proceeding is a civil proceeding in which the Govern-
ment does not have to prove its claim ‘beyond a reasonable
doubt.’ ” Id. at 42. Accordingly, after reviewing the statutory
language and the particular context at issue, the Court allowed
the immigration court to rely on the defendant’s sentencing
stipulation and the trial court’s restitution order, non-Shepard
documents that constituted clear and convincing evidence that
the loss amount was more than $10,000. See id. at 42-43.

Nijhawan’s analytic approach thus strongly suggests that
we should reconsider the assumption that the ACCA evidenti-
ary limitations are applicable in every context. Rather, when
operating outside a criminal proceeding, a court must consider
whether it is necessary to adapt the Taylor approach to fit the
specific language of the statute at issue and the civil context
of an immigration proceeding.

B

The considered analytic approach of Nijhawan is appropri-
ate here. Although the Supreme Court has not yet addressed
whether the ACCA evidentiary limitations are appropriate in
the cancellation of removal context under § 1229b(a)(3), the
specific statutory language of the cancellation of removal pro-
visions, see 8 U.S.C. § 1229a(c)(4), as well as the civil con-
text of immigration proceedings, weigh against applying the
ACCA evidentiary limitations here.

We should begin our analysis with the statutory language.
As described earlier, § 1229a(c)(4)(B) expressly delineates
the type of evidence that an alien may or must produce in
order to carry the alien’s burden of proving eligibility for can-
cellation of removal. Rather than limiting the alien to a nar-
row range of Shepard documents, this section allows and even
requires the alien to introduce a wide range of documents to
establish the nature of a prior conviction. In making this
determination, § 1229a(c)(4) directs the IJ to consider a range
 YOUNG v. HOLDER 11315
of documents, the testimony of the alien and any witnesses,
as well as ask for additional corroboration of this testimony
as needed.7 See supra at 11305-06.

The cancellation of removal context further supports such
a reading. The statutory scheme governing cancellation of
removal differs from ACCA in at least one important respect:
the alien has the burden of proving eligibility for this form of
relief. See 8 U.S.C. § 1229a(c)(4)(A); see also 8 C.F.R.
§ 1240.8(d). Unlike the criminal context or the removability
determination, in both of which the government bears the bur-
den of proving affirmatively that the alien’s conviction does
qualify for the enhancement at issue, Congress has placed the
burden of proving eligibility for cancellation of removal
squarely on the alien, who must prove that the conviction at
issue is not an aggravated felony. Authorizing the alien to
introduce and the IJ to consider a wide range of information,
including testimony, gives the alien a reasonable opportunity
to carry this burden. See 8 U.S.C. § 1229a(c)(4)(A), (B).

Accordingly, we should hold that the ACCA evidentiary
limitations do not apply in the cancellation of removal con-
text, and thus the alien is not limited to the Shepard docu-
ments in meeting the burden of showing that the alien has not
been convicted of an aggravated felony. This means that
Young should have the opportunity of introducing the evi-
dence permitted under the INA to establish that his prior con-
viction was not a drug trafficking offense.8 See supra at
11309-10.
7
The assertion in Judge Graber’s opinion that § 1229a(c)(4)(B) “merely
allows the IJ to require corroborative evidence for testimony presented by
the applicant,” Graber opinion at 11286-87 (emphasis in original), is thus
belied by the plain language of the statute itself.
8
Judge Graber’s statement that such evidence “is largely irrelevant to
the question that matters for the modified categorical approach,” Graber
op. at 11287, misunderstands the “question that matters”: whether Young
had been convicted of an offense that constituted an aggravated felony.
There is no reason why relevant non-Shepard evidence, such as Young’s
sworn testimony regarding what he was convicted of, is “[e]xtraneous” to
answering this question. Graber op. at 11287.
11316 YOUNG v. HOLDER
C

Young, as well as Judges Graber and Fletcher, offer a num-
ber of reasons for rejecting this approach and holding instead
that the ACCA evidentiary limitations do apply in the cancel-
lation of removal context. But these arguments do not with-
stand scrutiny.

First, Judge Graber asserts that despite the clear import of
Nijhawan, its approach is not applicable here because
§ 1229a(c)(4) does not contain the language present in
§ 1101(a)(43)(M)(i), which indicated that Congress intended
to apply a “ ‘circumstance-specific’ inquiry.” Graber op. at
11285. Her opinion contends that Nijhawan relaxed the
ACCA evidentiary limitations only in this very limited cir-
cumstance and only because neither a categorical nor modi-
fied categorical analysis was appropriate. Graber op. at
11285-86.

This effort to limit Nijhawan to the narrowest possible
reading of its facts misses the key point: Nijhawan establishes
that the ACCA evidentiary limitations do not apply when
Congress indicates otherwise in the text of the governing stat-
ute. See 557 U.S. at 37-38. Indeed, Judge Graber’s opinion
seems to overlook the entire section of Nijhawan where the
Court discussed and rejected the petitioner’s broader argu-
ment that, “for reasons of fairness,” the ACCA evidentiary
limitations should be applied notwithstanding the statute. Id.
at 41-43.

Further, this cramped reading of Nijhawan overlooks the
fact that the key policy reason suggested by the Supreme
Court for imposing evidentiary limitations in the ACCA con-
text, namely concerns regarding the risk of mini-trials to reli-
tigate the criminal case, see, e.g., Taylor, 495 U.S. at 601, do
not arise in the civil setting of a cancellation of removal pro-
ceeding, where the alien need only prove by a preponderance
of the evidence that the prior conviction was not an “aggra-
 YOUNG v. HOLDER 11317
vated felony,” see 8 C.F.R. § 1240.8(d). The IJ will not be
adjudicating guilt or innocence, as guilt has already been
determined in the prior criminal proceedings. Rather, the IJ,
who is well-positioned to consider testimonial and documen-
tary evidence, is required by statute to adjudicate only the
nature of the conviction and is thus likely to come to a better
conclusion by taking in more information and considering
credibility and corroboration of testimony. See In re Silva-
Trevino, 24 I. & N. Dec. 687, 702-03 (BIA 2008)
(“Immigration judges are well versed in case management,
and . . . the answer to a single question . . . may reveal a criti-
cal piece of information that is not in the record of conviction
and that would ensure correct application of the [governing
statute].”). Congress has demonstrated its confidence in the
IJ’s competence to make such decisions by designating the IJ
as the central arbiter in this statutory scheme and even insulat-
ing the exercise of that authority from judicial review. See 8
U.S.C. § 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction
to review” the granting of discretionary relief, including can-
cellation of removal).

Moreover, all these arguments in favor of applying the
ACCA evidentiary limitations in the cancellation of removal
setting are undercut by the flaw highlighted in Judge Fletch-
er’s dissent: such evidentiary limitations, coupled with the
statutory language putting the burden of proof on the alien,
reach an unfair result that Congress could not have intended.

We have previously addressed this inequity, as Judge
Fletcher would have us do here, by retaining the ACCA evi-
dentiary limitations and effectively eliminating the alien’s
burden of proof. See Sandoval-Lua v. Gonzales, 499 F.3d
1121 (9th Cir. 2007). In Sandoval-Lua, which required us to
apply pre-REAL ID Act law, we considered an alien’s claim
that the BIA erred in denying his application for cancellation
of removal because his state conviction did not constitute an
aggravated felony. See id. at 1123, 1126-27. Applying the
Taylor categorical approach, Sandoval-Lua agreed that the
11318 YOUNG v. HOLDER
state crime of conviction was categorically broader than the
applicable definition of an aggravated felony. See id. at 1128.
Turning to the modified categorical approach, the court lim-
ited its analysis to the Shepard documents, which were incon-
clusive as to whether the alien had been convicted of a crime
that qualified as an aggravated felony. See id. at 1129.

But the Sandoval-Lua court then recognized the potential
unfairness inherent in making an alien prove the nature of
prior state crimes while at the same time limiting the alien to
the Shepard documents to try to meet that burden. To avoid
this problem, Sandoval-Lua concluded that “an inconclusive
record of conviction is sufficient to demonstrate an alien peti-
tioner was not ‘necessarily’ convicted of the generic crime.”
Id. at 1132.

But this holding effectively imposed the burden of proof on
the government, which is contrary to § 1229a(c)(4)(A).9 In
order for a party to meet the preponderance of the evidence
standard, the party must show that “the existence of a fact is
more probable than its nonexistence.” Kennedy v. S. Cal. Edi-
son Co., 268 F.3d 763, 770 (9th Cir. 2001) (quoting Concrete
Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension
Trust for S. Cal., 508 U.S. 602, 622 (1993)) (internal quota-
tion marks omitted)). Under Sandoval-Lua, though, the alien
need not meet this burden: it is the government that must
show it is more probable than not that the alien was convicted
of an aggravated felony.10 Moreover, Sandoval-Lua’s
9
Because Sandoval-Lua considered an application for cancellation of
removal which was filed prior to the effective date of the REAL ID Act,
the panel explicitly declined to consider the effect of § 1229a(c)(4). 499
F.3d at 1132 n.10.
10
Given the language added by the REAL ID Act, it is clear that Con-
gress did not intend to relieve the alien of the burden of proof. Sandoval-
Lua has been rejected by two circuits as contrary to the plain language of
the cancellation of removal statute. See Salem v. Holder, 647 F.3d 111,
119 (4th Cir. 2011) (“With respect for our colleagues on the . . . Ninth Cir-
 YOUNG v. HOLDER 11319
approach of shifting the burden by implication has the per-
verse effect of encouraging aliens to conceal relevant evi-
dence. See Rosas-Castaneda v. Holder, 655 F.3d 875, 880,
884-85 (9th Cir. 2011) (holding that an alien could satisfy the
burden of proving eligibility for cancellation by refusing to
provide documents that would prove ineligibility for relief).

Judge Fletcher claims that Sandoval-Lua “plac[es] the bur-
den of proof squarely on the applicant for cancellation of
removal.” Fletcher dissent at 11301. This is true only if we
redefine what it means to carry a burden of proof so that it
means not carrying it. Indeed, Judge Fletcher effectively
admits as much, arguing that the burden should be on the gov-
ernment because it is “in the better position to obtain the evi-
dence,” Fletcher dissent at 11299, and citing cases involving
“[g]eneral burden-shifting principles,” United States v.
Cortez-Rivera, 454 F.3d 1038, 1041 (9th Cir. 2006). But such
practical considerations and general principles cannot trump
the plain language of a statute that clearly directs otherwise.

Sandoval-Lua (and Judge Fletcher) go to great lengths to
avoid the unfairness of saddling an alien with both the burden
of proof and evidentiary limitations. See Fletcher dissent at
11298-11301. I agree that Congress could not have intended
this result. But it is equally improper to ignore the plain lan-
guage of the statute, which puts the burden of proof on the
alien. The solution, of course, is to apply the statute as it is
written, applying both § 1229a(c)(4)(B), which sets forth a

cuit[ ], we believe that . . . Sandoval-Lua elide[s] the clear statutory lan-
guage of the INA establishing the noncitizen’s burden in relief-from-
removal proceedings.”); Garcia v. Holder, 584 F.3d 1288, 1290 (10th Cir.
2009) (“We agree with the BIA that [the Sandoval-Lua] approach effec-
tively nullifies the statutorily prescribed burden of proof.”). But see Marti-
nez v. Mukasey, 551 F.3d 113, 121 (2d Cir. 2008) (approving a
“straightforward application of the categorical approach” to cancellation
without any consideration of the statutory language).
11320 YOUNG v. HOLDER
broad range of permissible evidence, and § 1229a(c)(4)(A),
which imposes the burden of proof on the alien.

III

In the end, the analysis should be simple. The plain lan-
guage of § 1229a(c)(4)(B) requires the alien to carry the bur-
den of proving eligibility for cancellation of removal,
including proving that the alien had not previously been con-
victed of an aggravated felony. Although a court must use the
Supreme Court’s categorical and modified categorical tool to
determine if the prior conviction qualifies as an aggravated
felony, this tool does not impose evidentiary limitations
where the statute says otherwise, as it does here.

In arguing otherwise, Judge Fletcher’s dissent would adopt
the approach first set forth in Sandoval-Lua, which imposes
the evidentiary limitation set forth in Shepard, but shifts the
burden of proof to the government. As made clear above, both
of these interpretations are contrary to the statute.

But at least Judge Fletcher’s opinion has the virtue of being
logical, even if it is inconsistent with the statutory language.
It is Judge Graber’s opinion that reaches a result that could
never have been intended by Congress. Contrary to the opin-
ion, the result it reaches is “absurd.” Cf. Graber opinion at
11296. Judge Graber’s approach would give the alien the stat-
utory burden of proof, but ignore the statute’s evidentiary pro-
visions and unfairly impose the strict evidentiary limitations
of the ACCA enhancement analysis. Under this framework,
an alien who has not been convicted of an aggravated felony
is subject to the vagaries of state and local court recordkeep-
ing systems and has only the hope that the relevant documents
can be found (assuming they exist). If the limited documents
allowed under Shepard do not resolve the question, the alien
has no recourse. A fair reading of the applicable statutes
establishes that Congress did not intend such an inequitable
result. Cf. Nijhawan, 557 U.S. at 41 (assuming that Congress
 YOUNG v. HOLDER 11321
intended the use of “fundamentally fair procedures, including
procedures that give an alien a fair opportunity to dispute a
Government claim that a prior conviction” constituted an
aggravated felony).

The oddities of our division have now saddled us with a
ruling with which nine judges disagree and which departs
from the language of the statute in a way that most seriously
disadvantages the alien. I do not join this result.