UNITED STATES COURT OF APPEALS

Transcription

1 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 1 of 42 Nos & UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GABRIEL ALMANZA-ARENAS, v. Petitioner, LORETTA E. LYNCH, Respondent. On Petitions for Review of a Decision of the Board of Immigration Appeals No. A PETITIONER S SUPPLEMENTAL BRIEF JAYASHRI SRIKANTIAH LISA WEISSMAN-WARD IMMIGRANTS RIGHTS CLINIC MILLS LEGAL CLINIC STANFORD LAW SCHOOL 559 Nathan Abbott Way Stanford, CA (650) MURRAY D. HILTS MICHAEL CODNER LAW OFFICES OF MURRAY D. HILTS 3020 Meade Avenue San Diego, CA (760) MARK C. FLEMING WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA (617) DANIEL WINIK WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC (202) July 31, 2015

2 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 2 of 42 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTRODUCTION... 1 BACKGROUND... 2 ARGUMENT... 5 I. THE PANEL CORRECTLY RULED THAT 10851(a) IS NOT DIVISIBLE AND THE MODIFIED CATEGORICAL APPROACH DOES NOT APPLY... 7 A. A Statute Is Divisible If Its Alternative Elements Must Be Proven Beyond A Reasonable Doubt... 7 B. Section 10851(a) Is Indivisible II. THE RECORD OF MR. ALMANZA S CONVICTION ESTABLISHES THAT HE HAS NOT BEEN CONVICTED OF A CIMT A. Where The Record of Conviction Does Not Establish That An Applicant Has Been Convicted Of A CIMT, The Applicant Has As A Matter Of Law Not Been Convicted Of A CIMT B. The IJ s Request For Mr. Almanza To Supplement The Record Of Conviction Does Not Alter This Analysis CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE APPENDIX - i -

3 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 3 of 42 TABLE OF AUTHORITIES CASES Page(s) Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014)... 4, 7, 12, 21 Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006) Descamps v. United States, 133 S. Ct (2013)...passim Director, Office of Workers Compensation Programs, Department of Labor v. Greenwich Collieries, 512 U.S. 267 (1994) Dubner v. City & County of San Francisco, 266 F.3d 959 (9th Cir. 2001) In re E-H-, AXXXXXX689 (BIA May 20, 2015) Johnson v. Attorney General, 605 F. App x 138 (3d Cir. 2015) Lawrence v. Chater, 516 U.S. 163 (1996) Madrigal-Barcenas v. Holder, 507 F. App x 715 (9th Cir. 2013) Matter of A-G-G-, 25 I. & N. Dec. 486 (BIA 2011) Matter of Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009)... 3, 4 Matter of Chairez-Castrejon, 26 I. & N. Dec. 349 (BIA 2014)... 9 Matter of Chairez-Castrejon, 26 I. & N. Dec. 478 (BIA 2015)... 9 Mellouli v. Lynch, 135 S. Ct (2015) Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct (2011) Moncrieffe v. Holder, 133 S. Ct (2013)...passim Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013)... 5, 16 Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) ii -

4 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 4 of 42 People v. Davis, 10 Cal. Rptr. 2d 381 (App. 1992) People v. West, 477 P.2d 409 (Cal. 1970)... 2 Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014)... 8, 10, 11 Rendon v. Holder, 782 F.3d 466 (9th Cir. 2015)... 8, 11 Richardson v. United States, 526 U.S. 813 (1999)... 8 Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011)... 17, 26 Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014) Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007)... 16, 17, 24 Sequa Corp. & Affiliates v. United States, 350 F. Supp. 2d 447 (S.D.N.Y. 2004) Shepard v. United States, 544 U.S. 13 (2005)... 5 St. Mary s Honor Center v. Hicks, 509 U.S. 502 (1993) Syblis v. Attorney General, 763 F.3d 348 (3d Cir. 2014) Taylor v. United States, 495 U.S. 575 (1990)... 5 Thomas v. Attorney General, 625 F.3d 134 (3d Cir. 2010) United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931)... 5 United States v. Abbott, 748 F.3d 154 (3d Cir. 2014)... 9 United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007)... 8 United States v. Ceron, 775 F.3d 222 (5th Cir. 2014) United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006)... 24, 25 United States v. Denson, 728 F.3d 603 (6th Cir. 2013) iii -

5 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 5 of 42 United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014)... 9 United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) United States v. Norbury, 492 F.3d 1012 (9th Cir. 2007) United States v. Pate, 754 F.3d 550 (8th Cir. 2014)... 9 United States v. Seschillie, 310 F.3d 1208 (9th Cir. 2002) United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012) United States v. Willis, F.3d, No , 2015 WL (9th Cir. July 29, 2015) Young v. Holder, 697 F.3d 976 (9th Cir. 2012)...4, 17, 19, 20, 25, 26 STATUTES AND REGULATIONS 8 C.F.R , 23, 24 8 U.S.C , , a... 21, 23, 26, b... 2, Cal. Penal Code California Vehicle Code 10851(a)...passim - iv -

6 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 6 of 42 OTHER AUTHORITIES CALCRIM No CALJIC No Lang, Aaron, Note, An Opportunity for Change? Aggravated Felonies in Immigration Proceedings and the Effect of Moncrieffe v. Holder, 33 B.U. Int l L.J. 523 (2015) Witkin, Bernard Ernest, California Criminal Law (4th ed. 2012) v -

7 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 7 of 42 INTRODUCTION The statute under which petitioner Gabriel Almanza-Arenas was convicted California Vehicle Code 10851(a) prohibits both vehicle theft, which is a crime involving moral turpitude (CIMT), and joyriding, which is not. The Board of Immigration Appeals (BIA) recognized that a 10851(a) conviction is not categorically a CIMT. Applying the modified categorical approach, however, it held that Mr. Almanza failed to show eligibility for relief from removal because the record of his conviction did not make clear whether the conviction was for theft or joyriding. That was wrong for two reasons. First, because 10851(a) does not set forth alternative elements that must be charged distinctly and found beyond a reasonable doubt, it is indivisible and does not permit the application of the modified categorical approach. The BIA should therefore have found Mr. Almanza eligible for relief because his conviction was not categorically a CIMT, and the Court can grant the petitions for review on that ground alone. Second, even if the BIA were correct to apply the modified categorical approach, it erred by determining that the record of Mr. Almanza s conviction warranted the conclusion that Mr. Almanza was convicted of a CIMT. Noncitizens bear the burden to establish factual elements of eligibility for relief, but the allocation of the burden is irrelevant to the legal determination whether an - 1 -

8 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 8 of 42 applicant s record of conviction conclusively establishes the elements of a disqualifying offense. Unless the record shows that a noncitizen has been convicted of a disqualifying offense, the necessary conclusion is that he has not. That the record of conviction did not include a transcript of Mr. Almanza s plea colloquy does not change this, for three reasons. First, the transcript was irrelevant because Mr. Almanza s plea pursuant to People v. West, 477 P.2d 409 (Cal. 1970) did not require factual admissions. Second, the noncitizen s burden to show eligibility for relief is at most a burden of persuasion, not production. The government, not the noncitizen, should bear the burden to produce records of conviction, given the governing legal framework and the government s vastly superior ability to obtain those records. And third, no statutory authority exists for the immigration judge s request that Mr. Almanza produce a transcript. The Court should grant the petitions for review and remand for adjudication of the merits of Mr. Almanza s request for discretionary relief. BACKGROUND Mr. Almanza conceded removability but sought cancellation of removal under 8 U.S.C. 1229b(b)(1). Administrative Record (AR) 199. The government argued that he was ineligible because he had been convicted under 10851(a), which forbids taking a vehicle with intent to deprive its owner of it either permanently (theft) or temporarily (joyriding). AR , 253. The immigration - 2 -

9 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 9 of 42 judge (IJ) recognized that the conviction was not categorically a CIMT because taking a vehicle with intent to keep it only temporarily is not morally turpitudinous. AR The IJ nonetheless applied the modified categorical approach, without first determining whether 10851(a) sets forth alternative sets of elements that must be proven beyond a reasonable doubt. Recognizing that the record did not establish that Mr. Almanza had pled guilty to the elements of theft, the IJ invited [Mr. Almanza] to offer the complete record including a transcript or other judicially noticeable facts about the conviction. AR207. Mr. Almanza provided no further information. AR273. His counsel explained that a plea transcript would show nothing beyond the conviction document already in the record (AR540), because Mr. Almanza s West plea did not require him to admit facts. AR ; see AR (plea form). The IJ nonetheless ruled that Mr. Almanza had not carried his burden of proof to show that the conviction was for joy-riding and not for a theft related offense and thus that he had been convicted of a CIMT, barring relief. AR208. The BIA dismissed Mr. Almanza s appeal. Matter of Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009). It did not disturb the IJ s determination that a 10851(a) conviction is not categorically a CIMT. Id. at 773 n.3. Like the IJ, however, it proceeded to the modified categorical approach. The BIA held that it - 3 -

10 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 10 of 42 was proper for the IJ to ask Mr. Almanza to produce a plea transcript and that Mr. Almanza had failed to meet his burden of proof to establish that he was not convicted of a CIMT. Id. at The BIA denied reconsideration. AR2-3. A panel of this Court granted Mr. Almanza s petitions for review. Almanza- Arenas v. Holder, 771 F.3d 1184, 1188 (9th Cir. 2014). The panel held unanimously that a 10851(a) conviction is not categorically a CIMT (id. at 1190) and that the BIA erred in applying the modified categorical approach because 10851(a) does not set forth alternative elements (id. at 1191). One judge would have stopped there. Id. at 1195 (Fisher, J., concurring in part and in the judgment). A majority held that the BIA erred even under the modified categorical approach, because the record was inconclusive and its [a]mbiguity mean[t] that the conviction did not necessarily involve facts that correspond to a disqualifying conviction. Id. at 1193 (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1687 (2013)). The majority held that any contrary ruling in Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), was clearly irreconcilable with Moncrieffe. 771 F.3d at The Court sua sponte ordered rehearing en banc. 1 The BIA also rejected Mr. Almanza s argument that he was eligible under the petty offense exception, 8 U.S.C. 1182(a)(2)(A)(ii)(II). Id. at

11 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 11 of 42 ARGUMENT Mr. Almanza s eligibility for cancellation of removal turns on whether he has been convicted of a CIMT. 8 U.S.C. 1227(a)(2)(A)(i) (emphasis added); see id. 1229b(b)(1). [A]n alien has been convicted of only those acts that form the basis for the conviction, as shown by the record of his conviction. Olivas- Motta v. Holder, 746 F.3d 907, 912 (9th Cir. 2013); see also, e.g., United States ex rel. Robinson v. Day, 51 F.2d 1022, (2d Cir. 1931) (L. Hand, J.). In determining which acts form the basis for a conviction, courts employ the categorical and modified categorical approaches described in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). See, e.g., Moncrieffe, 133 S. Ct. at Under the categorical approach, courts look only to the statutory definitions i.e., the elements of a [non-citizen s] prior offenses to determine whether the relevant statute has the same elements as the generic federal offense (here, a CIMT). Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). The IJ and BIA held that a 10851(a) conviction is not categorically a CIMT, because 10851(a) covers taking a vehicle with intent to keep it only temporarily, which is not morally turpitudinous. The government agrees. See Resp. Mar Br. 5 n.1 (Dkt. 101) ( A violation is not turpitudinous when it involves intended deprivation[s] of possession from the owner for a temporary period without intent to steal. )

12 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 12 of 42 When a conviction does not categorically constitute a generic offense, courts may in a narrow range of cases apply a modified categorical approach, by consulting a limited class of documents comprising the record of conviction to determine which of a statute s alternative elements formed the basis of the conviction. Descamps, 133 S. Ct. at The modified categorical approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant s conviction. Id. at If a statute is divisible i.e., if it sets out one or more elements of the offense in the alternative, id. at 2281 the conviction record can reveal which of the alternative elements supported the conviction. By contrast, courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at The BIA misapprehended these principles in two ways. First, the statute of Mr. Almanza s conviction is not divisible and therefore does not permit application of the modified categorical approach; as a result, Mr. Almanza is eligible for relief because a 10851(a) conviction is not categorically a CIMT. Second, even were the modified categorical approach appropriate, Mr. Almanza is eligible for relief - 6 -

13 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 13 of 42 because the record of conviction does not conclusively establish that his conviction rested on morally turpitudinous elements. 2 I. THE PANEL CORRECTLY RULED THAT 10851(a) IS NOT DIVISIBLE AND THE MODIFIED CATEGORICAL APPROACH DOES NOT APPLY A. A Statute Is Divisible If Its Alternative Elements Must Be Proven Beyond A Reasonable Doubt Divisible statutes are those that enable a court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime. Descamps, 133 S. Ct. at A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt. Id. (citation and footnote omitted). Only when the statute of conviction recites alternative sets of elements one of which must be found beyond a reasonable doubt can courts employ the modified categorical approach to serve the limited function explicated by Descamps, id. at 2283, namely to determine of which crime the defendant stands convicted. 2 Mr. Almanza s opening brief argues (at 20-26) that his misdemeanor conviction qualified for the petty offense exception to the CIMT provision of 8 U.S.C. 1182, and that the length of his potential sentence was insufficient to subject him to the felony CIMT provision of 8 U.S.C Because the panel opinion did not address these arguments, 771 F.3d at 1189 n.4, this brief does not present them further, but they remain open in the event the Court rejects the arguments presented here

14 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 14 of 42 This Court, applying Descamps, has rightly held that a statute has alternative elements and is thus divisible [o]nly when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute. Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014), reh g en banc denied, 782 F.3d 466 (9th Cir. 2015). It is not enough for a statute to describe alternative means of commission ; such a statute must still be regarded as indivisible if the jurors need not agree on which method of committing the offense the defendant used. Id. at 1085; see also Richardson v. United States, 526 U.S. 813, 817 (1999) (distinguishing between elements, which must be found by a jury in order to convict, and means, which need not); United States v. Beltran- Munguia, 489 F.3d 1042, 1045 (9th Cir. 2007) (an element of a crime is a constituent part of the offense [that] must be proved by the prosecution in every case to sustain a conviction under a given statute ). The Fourth Circuit has likewise held that mere use of the disjunctive or in the definition of a crime does not automatically render it divisible, and that a crime is divisible under Descamps only if it is defined to include multiple alternative elements, defined as factual circumstances of the offense the jury must find unanimously and beyond a reasonable doubt. Omargharib v. Holder, 775 F.3d 192, 194, 198 (4th Cir. 2014) (internal quotation marks omitted)

15 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 15 of 42 Four other Circuits and the BIA itself have described or applied the divisibility standard as the panel did here. See United States v. Estrella, 758 F.3d 1239, 1246 (11th Cir. 2014) (divisibility depends on whether jurors [would] typically be required to agree that their decision to convict is based on one of the alternative elements ); United States v. Pate, 754 F.3d 550, 554 (8th Cir. 2014) (statute not divisible as to means of flight, which jury did not have to determine); United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014) (statute divisible because jury had to find type of drug involved); United States v. Denson, 728 F.3d 603, 612 (6th Cir. 2013) (divisibility determination was pinned to [court s] understanding that the offense of violence a defendant is charged with inciting is an element that must be proven beyond a reasonable doubt ); Matter of Chairez-Castrejon, 26 I. & N. Dec. 349, 353 (BIA 2014) (statute is not divisible unless it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, defined as facts that must be found unanimously and beyond a reasonable doubt ). 3 Although some courts have treated disjunctively-worded statutes as divisible, many have done so cursorily, without analyzing whether the statutes set 3 Because the BIA s divisibility analysis does not receive deference (see id. at 354), the BIA partially vacated Chairez-Castrejon as superseded by Tenth Circuit authority, but clarified that IJs should continue to follow the interpretation of divisibility in its initial opinion absent contrary binding authority. Matter of Chairez-Castrejon, 26 I. & N. Dec. 478, 484 (BIA 2015)

16 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 16 of 42 forth separate elements or merely alternative means. The few opinions that have reached a considered conclusion contrary to the panel s have relied on two sentences in footnote 2 of Descamps, in which the majority responded to an argument made by Justice Alito s dissent. See United States v. Mathis, 786 F.3d 1068, (8th Cir. 2015); Rendon, 782 F.3d at 468 (Graber, J., dissenting from denial of rehearing en banc); United States v. Trent, 767 F.3d 1046, (10th Cir. 2014). Those sentences state: Whatever a statute lists (whether elements or means), the documents we approved in Taylor and Shepard would reflect the crime s elements. So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense. 133 S. Ct. at 2285 n.2. Footnote 2 does not eliminate the distinction between alternative elements of an offense (which must be found unanimously beyond a reasonable doubt) and alternative means of committing the offense (which need not). To the contrary, the footnote says that while a statute may list either elements or means, the court s focus must be on the crime s elements. Id. (emphasis added). And its response to Justice Alito s assertion that distinguishing between alternative elements and alternative means is difficult is not to deny the relevance of that distinction but simply to point out that the distinction will usually not be difficult. It will be evident from easily accessible sources of state law like pattern jury instructions, see, e.g., Descamps, 133 S. Ct. at 2291 n

17 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 17 of 42 (referring to pattern instruction in determining elements of offense) and may sometimes be reflected in the record of conviction. Footnote 2 therefore does not support the view that any statute containing phrases separated by the word or is divisible a view that would eviscerate everything else Descamps says about the importance of an elements-based approach. See 133 S. Ct. at 2284, 2287, Having denied rehearing en banc in Rendon, this Court should continue to embrace its straightforward application of Descamps: Divisible statutes are those that enable a court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime (Descamps, 133 S. Ct. at 2290), and that is possible [o]nly when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute. Rendon, 764 F.3d at Even if a court consults the record of conviction for the limited purpose of determining what that statute s elements are, as Judge Kozinski suggested in Rendon, that does not mean the court should use the modified categorical approach irrespective of whether a statute lists elements or means ; at most, it permits [the court] to peek at the [record of conviction] in order to determine which approach to use. 782 F.3d at 473 (Kozinski, J., dissenting from the denial of rehearing en banc). Nor is the record of conviction a dispositive factor in that inquiry; it is to be considered (at most) alongside other indicia of state law. Even if Mr. Almanza s record of conviction were considered in the manner suggested by Judge Kozinski, it would cast no doubt on the panel s correct ruling that 10851(a) is indivisible

18 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 18 of 42 B. Section 10851(a) Is Indivisible A conviction under 10851(a) does not turn on a finding whether the defendant intended to steal or only to take a vehicle temporarily. As relevant, 10851(a) punishes [a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle. (Emphasis added.) As the panel ruled, this language simply establishes a threshold for the intent element : It requires a defendant to have the minimum intent to deprive an owner of her vehicle for some period of time. Almanza- Arenas, 771 F.3d at 1191 (emphasis added); see 2 Witkin, Cal. Crim. Law 108 (4th ed. 2012) (one can violate 10851(a) with the intent only to deprive the owner of title or possession temporarily ). Because the State need not prove the length of the intended deprivation, the record of a 10851(a) conviction cannot show that the defendant was convicted of a CIMT. The government argues that [a] disjunctively-written phrase such as Section 10851(a) s reference to an intent either to permanently or temporarily deprive the owner, which appears on its face to set out alternative versions of the crime, is the hallmark of divisibility under Descamps. Resp. Mar Br. 28. But as explained above, the word or does not by itself render a statute divisible, because

19 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 19 of 42 it can just as easily demarcate multiple means of committing a single, indivisible crime. See, e.g., United States v. Willis, F.3d, No , 2015 WL , at *6 (9th Cir. July 29, 2015) ( The fact that a statute is written in the disjunctive alone cannot end the divisibility inquiry; rather, we must determine whether the statute contains multiple alternative elements, as opposed to multiple alternative means. (internal quotation marks omitted)). There are three reasons why 10851(a) does not set forth alternative mental-state elements. First, [a] prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives, Descamps, 133 S. Ct. at 2290 but 10851(a) does not set forth alternative mental-state elements in separate subsections, from which the prosecutor could easily select in charging papers. Cf. United States v. Ceron, 775 F.3d 222, 227 (5th Cir. 2014) ( If a statute contains multiple, disjunctive subsections, we apply a modified categorical approach. ). Second, 10851(a) states that the prosecution need not prove (and the jury need not find) an intent to steal: The statute imposes liability on anyone who takes a vehicle whether with or without intent to steal it. Just as Descamps held that Cal. Penal Code 459 was indivisible because California, to get a conviction, need not prove that [the defendant] broke and entered, 133 S. Ct. at , 10851(a) is indivisible between theft and joyriding because California, to get a

20 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 20 of 42 conviction, need not prove that the defendant took a vehicle with intent to steal it. See also Moncrieffe, 133 S. Ct. at 1684 ( [W]e must presume that [a] conviction rested upon [nothing] more than the least of th[e] acts criminalized[.] ). Third, neither of California s standard jury instructions on 10851(a) directs the jury to determine whether the defendant intended to steal. The current pattern instruction simply asks the jury to find whether the defendant intended to deprive the owner of possession or ownership of the vehicle for any period of time. CALCRIM No (emphasis added). And the older instruction, in effect when Mr. Almanza was convicted, required a finding whether the defendant had the specific intent to deprive the owner either permanently or temporarily of [his or her] title to or possession of the vehicle. CALJIC No (emphasis added). 5 5 The government argues that pattern jury instructions indicate what juries might typically be asked to find, not what juries are required to find in every case. Resp. Mar Br. 28. But pattern instructions are useful in this context not to identify what instruction was given in a particular case (not an issue here, since Mr. Almanza pled guilty) but to identify the crime s elements. That juries typically are not asked to distinguish between mental-state elements confirms that 10851(a) is indivisible. The government also complains (at 33) that if pattern instructions or other state-law interpretations are relevant to determining the divisibility of a statute, sentencing courts (and the parties) will have to undertake resource-draining research into state law, the end result of which may well be an unclear answer. But it should rarely be necessary to look beyond pattern instructions to clarify state law. And even if the Court were to limit divisibility analysis to the statutory text, the right approach would be to hold that statutes are divisible if they state alternative elements in separately enumerated provisions not, as the government suggests, that any statute containing the word or is divisible

21 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 21 of 42 A jury can convict without agreeing whether the defendant intended a permanent or temporary taking. See People v. Davis, 10 Cal. Rptr. 2d 381, 391 (App. 1992) (California juries need not agree on theory of guilt). The government urges that, because a defendant could violate 10851(a) in a morally turpitudinous manner, a court should be able to consult the record in a given case to determine whether the prosecutor charged the defendant with violating Section 10851(a) intending a permanent deprivation and the defendant admitted to intending a permanent deprivation when he pled guilty. Resp. Mar Br. 28. That mode of analysis was adopted in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), but rejected by Descamps. See 133 S. Ct. at 2286 (under Aguila-Montes de Oca, the court could look to reliable materials to determine what facts can confident[ly] be thought to underlie the defendant s conviction in light of the prosecutorial theory of the case and the facts put forward by the government ); id. at 2287 (rejecting this analysis as inconsistent with an elements-based inquiry ). Accordingly, 10851(a) is indivisible and the BIA s resort to the modified categorical approach was improper. Because Mr. Almanza s conviction is not categorically a CIMT, he is eligible for relief from removal

22 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 22 of 42 II. THE RECORD OF MR. ALMANZA S CONVICTION ESTABLISHES THAT HE HAS NOT BEEN CONVICTED OF A CIMT Even if 10851(a) were divisible, such that the BIA were permitted to apply the modified categorical approach, the BIA erred in determining that the record showed Mr. Almanza was convicted of a CIMT. A. Where The Record of Conviction Does Not Establish That An Applicant Has Been Convicted Of A CIMT, The Applicant Has As A Matter Of Law Not Been Convicted Of A CIMT As noted above, an alien has been convicted of only those acts that form the basis for the conviction, as shown by the record of his conviction. Olivas- Motta, 746 F.3d at 912. A court s determination of a conviction s elements is legal in nature. That is certainly true under the categorical approach, where the court is simply construing a statute. And it is equally true under the modified categorical variant: If the elements of a noncitizen s conviction (as revealed by the statute and the limited record of conviction) do not match the elements of the disqualifying offense, then as a matter of law the noncitizen has not been convicted of that offense, whatever his actual conduct might have been. This Court so held in Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), reasoning that a predicate conviction qualifies as a generic crime under the modified categorical approach only if the record of conviction shows the jury necessarily found all of the generic elements, or the defendant necessarily admitted all of the generic elements in a plea, and that where the record of conviction is inconclusive, a court

23 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 23 of 42 must conclude as a matter of law that the conviction was not for a generic offense. Id. at (emphasis added). A unanimous panel reaffirmed this reasoning in Rosas-Castaneda v. Holder, 655 F.3d 875, (9th Cir. 2011). Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), overruled these holdings, finding them inconsistent with the noncitizen s burden to show eligibility for relief. But Young was wrong when decided, and the Supreme Court s intervening decisions which reiterate the rationale of Sandoval-Lua make clear that Young should be overruled. Like Sandoval-Lua, Moncrieffe recognizes that where a noncitizen s status turns on whether he has been convicted of a particular type of offense, courts and the agency must examine what the conviction necessarily involved. 133 S. Ct. at 1684 (emphasis added); see also id. at 1688 (question is whether the record of conviction necessarily establishes conduct that qualifies as the generic offense). Where the record does not establish that a noncitizen has necessarily been convicted of an offense, the only lawful conclusion is that he has not. See id. at 1687 ( Ambiguity on this point means that the conviction did not necessarily involve facts that correspond to an offense punishable as a felony under the CSA. ). Descamps reiterates that a conviction based on a guilty plea can qualify as [a generic offense] only if the defendant necessarily admitted [the] elements of the generic offense. 133 S. Ct. at And just last month, the Supreme Court again emphasized that the categorical

24 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 24 of 42 approach focus[es] on the legal question of what a conviction necessarily established. Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). The BIA has begun to recognize the implications of these holdings: In a recent unpublished opinion, it held that, under Moncrieffe, a conviction does not preclude relief where the record of conviction is inconclusive. In re E-H-, AXXXXXX689 (BIA May 20, 2015) (attached in Appendix). And even the government acknowledged before the panel that Young may require rethinking in light of Moncrieffe. Oral Argument Audio 28:26. 6 Although Moncrieffe addressed removability (on which the government bears the burden) rather than eligibility for relief (on which noncitizens do), the Supreme Court regarded this distinction as irrelevant. See 133 S. Ct. at 1685 n.4 ( Our analysis is the same in both contexts. ). Thus, the Court explained that a 6 The government argues that the panel opinion (holding that Moncrieffe abrogated Young) conflicts with decisions of the Fourth Circuit and the Tenth Circuit (Resp. Mar Br. 16), but the opinions the government cites all predate Moncrieffe. The government also suggests (id.) that the panel opinion is at odds with Sanchez v. Holder, 757 F.3d 712, 720 n.6 (7th Cir. 2014). But as the government s softer language suggests, Sanchez does not actually adopt a holding contrary to the panel s; it comments on this issue only in a footnote s worth of dicta, ruling for the noncitizen on a different ground. Nor does Syblis v. Attorney General, 763 F.3d 348 (3d Cir. 2014), conflict with the panel opinion. Syblis arose in a different context where the categorical approach does not apply (id. at 356); on-point Third Circuit decisions approach the issue much as the panel did here. Johnson v. Att y Gen., 605 F. App x 138, (3d Cir. 2015) (post-syblis unpublished decision); Thomas v. Att y Gen., 625 F.3d 134, (3d Cir. 2010); see Syblis, 763 F.3d at 357 n.12 (distinguishing Thomas on the basis that it involved categorical analysis)

25 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 25 of 42 noncitizen who has been found not to be removable as an aggravated felon may seek relief from removal assuming he satisfies the other eligibility criteria, id. at 1692 (emphasis added) i.e., criteria other than not having an aggravated felony conviction. The Court thus ruled out the possibility that a noncitizen might be found to have been convicted of an aggravated felony in the relief-from-removal context and yet not convicted of such an offense in the removability context. See Lang, Note, An Opportunity for Change?, 33 B.U. Int l L.J. 523, 538 (2015). 7 Indeed, none of Young s reasoning about the effect of burden allocation is consistent with the law on what constitutes a conviction. Young states that because an inconclusive record does not satisfy the government s burden to show the presence of a conviction, it must not satisfy the applicant s burden to show the absence of one. 697 F.3d at 989. But an inconclusive record necessarily shows the absence of a conviction; it can never show the presence of a conviction (or it would not be inconclusive). Young also argues that where the record is inconclusive, the 7 The Supreme Court s vacatur and remand in light of Mellouli of Madrigal- Barcenas v. Holder, 507 F. App x 715 (9th Cir. 2013), vacated, 135 S. Ct (2015) (mem.), further supports the view that the effect of an inconclusive record should not differ between relief-from-removal cases and removability cases. In opposing certiorari in Madrigal-Barcenas, the government sought to distinguish Mellouli on the ground that Madrigal-Barcenas was seeking relief, whereas Mellouli was contesting removability. Br. in Opp. 9-10, 13. The Supreme Court s decision to grant Madrigal-Barcenas s petition suggests that it disagreed with the government s distinction. See, e.g., Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam) (criteria for grant, vacatur, and remand)

26 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 26 of 42 evidence about the nature of the conviction is in equipoise, such that the party bearing the burden must lose. Id. But where the record does not establish a conviction for a generic offense, the evidence is not in equipoise ; there is not, say, a 40% or 60% chance that the conviction was for the generic offense. There is zero chance: The conviction does not qualify, as a matter of law. The allocation of the burden is therefore irrelevant. This conclusion reflects the general rule that the allocation of the burden does not affect determinations made as a matter of law. See United States v. Norbury, 492 F.3d 1012, 1014 n.2 (9th Cir. 2007) (burden to establish a prior conviction was irrelevant to legal question whether a dismissed conviction qualifies as a prior conviction ); United States v. Seschillie, 310 F.3d 1208, 1215 (9th Cir. 2002) ( Because harmless error analysis is a purely legal question which lies outside the realm of fact-finding, we ordinarily dispense with burdens of proof and presumptions[.] ); Sequa Corp. & Affiliates v. United States, 350 F. Supp. 2d 447, 449 (S.D.N.Y. 2004) ( [T]he concept of burden of proof has no relevance where a dispute is solely on a question of law. ), aff d, 437 F.3d 236 (2d Cir. 2006). In determining whether a conviction qualifies as a generic offense, a court is simply applying the law to a finite record the statute and the limited set of documents in the record of conviction. That is not the type of determination that the allocation of the burden can affect

27 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 27 of 42 None of this renders irrelevant the rule that when a noncitizen applies for relief from removal and the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the [noncitizen] shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. 8 C.F.R (d); see also 8 U.S.C. 1229a(c)(4). This burden applies when a noncitizen must disprove grounds of ineligibility that turn on facts of his conduct or circumstances. Under 8 U.S.C. 1158(b)(2)(A)(vi), for example, an asylum applicant must prove that he was not firmly resettled in another country prior to arriving in the United States, and under 1255(c)(8), an applicant for adjustment of status must prove that he was not employed while unauthorized. The allocation of the burden is irrelevant, however, as to the legal determination whether a noncitizen s prior conviction is for a disqualifying offense. B. The IJ s Request For Mr. Almanza To Supplement The Record Of Conviction Does Not Alter This Analysis The government relies heavily on the fact that the IJ asked Mr. Almanza to submit a transcript of his plea colloquy and that he did not. See Resp. Mar Br That argument fails for three reasons. First, a plea transcript would have been irrelevant, as it could not possibly have established that Mr. Almanza s conviction constituted a CIMT. That is because Mr. Almanza entered a West plea a plea of nolo contendere, not admitting a factual basis. Almanza-Arenas, 771 F.3d at 1188 n.1. In applying

28 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 28 of 42 the modified categorical approach, courts may rely on factual admissions only to the extent they were necessary to a conviction. See Descamps, 133 S. Ct. at 2284 ( [A] conviction based on a guilty plea can qualify as an ACCA predicate only if the defendant necessarily admitted [the] elements of the generic offense. ); Moncrieffe, 133 S. Ct. at 1684 ( [W]e examine what the state conviction necessarily involved[.] ). And the point of a West plea is that a defendant s admission of facts is not necessary to his conviction. So even if a transcript could establish the factual basis for the charge against Mr. Almanza even if, for example, the prosecutor stated that Mr. Almanza had stolen a car, and Mr. Almanza did not expressly object to that assertion the transcript would not establish the elements of Mr. Almanza s conviction, because any factual admissions would have been unnecessary to the conviction. See Descamps, 133 S. Ct. at (to ask what facts can confident[ly] be thought to underlie [a] conviction, whether or not they were actually required for conviction, wrongly turns an elements-based inquiry into an evidence-based one ). 8 8 This Court held, prior to Descamps, that a West plea could establish the nature of the defendant s conviction if a charging document showed that the defendant pled to a particular count that reflected the elements of the generic federal offense. United States v. Valdavinos-Torres, 704 F.3d 679, (9th Cir. 2012). Even assuming arguendo that that holding survives Descamps, it cannot help the government here, given that nothing in Mr. Almanza s record of conviction suggests that he was charged with or pled to a count that he took a vehicle with intent to keep it permanently. See AR535 (charging Mr. Almanza under 10851(a) with driving or taking a vehicle without consent and with intent

29 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 29 of 42 Second, it is the government, not the noncitizen, that bears the burden of producing records of conviction. Although the applicable statute (8 U.S.C. 1229a(c)(4)) and regulation (8 C.F.R (d)) place on noncitizens the burden of proof as to their eligibility for relief, that burden even if it were relevant in this context, which it is not is at most a burden of persuasion, not of production. Burdens of persuasion and production are distinct concepts. Director, Office of Workers Comp. Programs, Dep t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). Courts once used burden of proof to refer to both (id.), but now generally use that term to refer to the burden of persuasion. Id. at 274; see also Microsoft Corp. v. i4i Ltd. P ship, 131 S. Ct. 2238, 2245 n.4 (2011) (using burden of proof interchangeably with burden of persuasion ). And although the burden of production often follows the burden of persuasion, that is not always so. See, e.g., St. Mary s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (explaining shift in burden of production in Title VII cases). Here, there are two reasons to hold that the government, not the noncitizen, bears the burden to produce documents from the record of conviction. The first is the text of the relevant regulation, which provides that [i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief either permanently or temporarily to deprive its owner of it); AR , 542 (memorializing Mr. Almanza s plea of guilty to a violation of 10851(a))

30 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 30 of 42 may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. 8 C.F.R (d) (emphasis added). Unless the government first produces the record of conviction, the evidence cannot indicate[] that the conviction might bar relief. See, e.g., Matter of A-G- G-, 25 I. & N. Dec. 486, 501 (BIA 2011) (explaining that the circuit courts of appeals have held that the [government] bears the initial burden of establishing that evidence indicates that a mandatory bar to relief applies, and that this requires the government to secure and produce evidence ). Thus, in Sandoval-Lua, then-judge Thomas wrote that instead of holding that the noncitizen petitioner had borne his burden of proof he would have join[ed] the First Circuit in holding that the government bears the burden of proving the existence and nature of prior convictions, even when those prior convictions are at issue only as they relate to an alien s application for discretionary relief. 499 F.3d at 1133 (Thomas, J., concurring) (citing Berhe v. Gonzales, 464 F.3d 74, (1st Cir. 2006)). To the extent the government claims it can satisfy this burden by producing only some documents from the record of conviction, leaving the noncitizen to produce the rest, a second line of reasoning becomes relevant: Burdens are generally placed on the party who is in the best position to present the evidence. United States v. Cortez-Rivera, 454 F.3d 1038, 1041 (9th Cir. 2006) (adverting to [g]eneral burden-shifting principles ). In particular, fairness and common sense

31 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 31 of 42 often counsel against requiring a party to prove a negative fact, and favor, instead, placing the burden of coming forward with evidence on the party with superior access to the affirmative information. Id. (internal quotation marks omitted); see Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001) (once a plaintiff shows she was arrested without a valid warrant, the burden shifts to the [police department] to provide some evidence that the arresting officers had probable cause for a warrantless arrest, in part because the police department is in the better position to gather information about the arrest ); see also Young, 697 F.3d at (B. Fletcher, J., concurring in part and dissenting in part). Here, there can be no doubt where fairness would place the burden of production: The government can obtain conviction documents with vastly greater ease than noncitizens in removal proceedings. See id. at 991 (explaining that applicants for relief may be unable to obtain judicial records 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, whereas the government has access to such documents ); see also Moncrieffe, 133 S. Ct. at 1690 ( [D]uring removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory detention, where they have little ability to collect evidence[.] ). That is particularly true for plea transcripts, which are not likely to be prepared as a matter of course; the

32 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 32 of 42 transcripts must be ordered from a court reporter, at potentially significant cost. See Resp. Mar Br. 25 (noting cost ). Even the government acknowledged before the panel that it is a project to track down these transcripts sometimes. Oral Argument Audio 35:35. Third, even if a transcript of Mr. Almanza s West plea were plausibly relevant, the IJ lacked statutory authority to ask Mr. Almanza to provide it. IJs have limited authority to require applicants to submit evidence to corroborate[] otherwise credible testimony. 8 U.S.C. 1229a(c)(4)(B) (emphasis added). But as this Court has held, that provision unambiguously authorizes IJs to request corroboration of only testimonial evidence, and conspicuously excludes the authority to require an alien to corroborate other evidence in the record, including judicially noticeable conviction documents. Rosas-Castaneda, 655 F.3d at Rosas-Castaneda dictates that instead of asking Mr. Almanza to supplement the record of conviction, the IJ should have ruled on the conviction record as it stood that Mr. Almanza had not been convicted of a CIMT. 9 This conclusion makes sense here, since as discussed above the government is far 9 Young overruled a different holding of Rosas-Castaneda, 697 F.3d at , but reaffirmed and relied on Rosas-Castaneda s reading of 1229a(c)(4)(B). See id. at 984 (citing Rosas-Castaneda, 655 F.3d at , for the proposition that the statute merely allows the IJ to require corroborative evidence for testimony, and says nothing about opening the door for additional evidence to supplement the documentary record of conviction )

33 RESTRICTED Case: , 07/31/2015, ID: , DktEntry: 151, Page 33 of 42 better situated than noncitizen applicants to provide conviction documents, and in many cases will already have them in its possession. The government argues that 1229a(c)(4)(B) was broadly intended to shore up the latitude of [IJs] to draw inferences from evidence and an alien s failure to produce evidence. Resp. Mar Br. 22. But the question is not whether IJs may draw inferences from documents that are in the record; it is whether they may direct noncitizens to produce additional documents that the government is better situated to obtain. The government offers no reason IJs would have that authority without a statutory mandate. The government invokes 8 U.S.C. 1103(g)(2) (Resp. Mar Br. 22 n.3) a provision authorizing the Attorney General to delegate her authority under the INA, including the authority to adjudicate applications for cancellation of removal. But the particular delegations on which the government relies (8 C.F.R (c); id (b)) generally govern the conduct of proceedings and the consideration of evidence submitted by the parties; they omit any power to compel the production of additional evidence. And as described above, this omission makes particular sense with respect to conviction documents, which the government can obtain more easily than noncitizens can. Accordingly, there was no basis for the IJ and BIA to penalize Mr. Almanza for not ordering or presenting a transcript of a West plea that was, in any event, irrelevant to the question at hand