FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ARACELY MARINELARENA, No. 14-72003 Petitioner, Agency No. v. A095-731-273 WILLIAM P. BARR, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted En Banc September 27, 2018 Pasadena, California Filed July 18, 2019 Before: Sidney R. Thomas, Chief Judge, and A. Wallace Tashima, Susan P. Graber, William A. Fletcher, Marsha S. Berzon, Johnnie B. Rawlinson, Jay S. Bybee, Milan D. Smith, Jr., Sandra S. Ikuta, Paul J. Watford and Michelle T. Friedland, Circuit Judges. Opinion by Judge Tashima; Dissent by Judge Ikuta 2 MARINELARENA V. SESSIONS SUMMARY* Immigration Granting Aracely Marinelarena’s petition for review, reversing a decision of the Board of Immigration Appeals, and remanding, the en banc court overruled Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), and held that, in the context of eligibility for cancellation of removal, a petitioner’s state-law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense. Marinelarena was charged with conspiracy to commit a felony in violation of California Penal Code § 182(a)(1), namely conspiring to sell and transport a controlled substance in violation of California Health and Safety Code § 11352. The complaint listed a number of overt acts in support, only one of which referenced a specific controlled substance, heroin. Upon a guilty plea, Marinelarena was convicted of violating § 182(a)(1). In removal proceedings, Marinelarena argued that her conviction did not constitute a controlled substance offense that barred cancellation of removal because her record of conviction did not identify that the conviction rested on a specific controlled substance. However, the BIA concluded that Marinelarena had the burden of establishing that her conviction was not a disqualifying offense, and that she had not met that burden. * 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 In determining whether Marinelarena’s conviction constituted a predicate offense for immigration purposes, the en banc court applied the three-step process derived from Taylor v. United States, 495 U.S. 575 (1990). First, the en banc court held that the conspiracy statute under which Marinelarena was convicted was not a categorical match to the relevant federal controlled substance offense because a defendant could be convicted under California Penal Code § 182(a)(1) for any criminal conspiracy, whether or not it relates to a controlled substance offense. Second, the en banc court assumed that § 182(a)(1) is divisible both as to the predicate crime underlying the conspiracy (here, § 11352) and as to the controlled substance element of § 11352, explaining that the issue of divisibility made no difference to the outcome of the case. Third, the en banc court applied the modified categorical approach, in which the court examines judicially noticeable documents of conviction – known as Shepard documents after Shepard v. United States, 544 U.S. ...
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