FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARACELY MARINELARENA,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

No. 14-72003

Agency No.

A095-731-273

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued April 6, 2016

Resubmitted August 4, 2017

Pasadena, California

Filed August 23, 2017

Before: A. Wallace Tashima, Barry G. Silverman,

 and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Tashima
2 MARINELARENA V. SESSIONS

SUMMARY*

Immigration

The panel denied in part and dismissed in part Aracely

Marinelarena’s petition for review of the Board of

Immigration Appeals’ decision finding her ineligible for

cancellation of removal because she had failed to meet her

burden of proof to show that her conviction was not for a

disqualifying controlled substance offense. 

The panel held that the conspiracy statute under

which Marinelarena was convicted, California Penal Code

§ 182(a)(1), is overbroad but divisible as to the target crime. 

The panel further held that the target crime, sale and transport

of a controlled substance under California Health and Safety

Code § 11352, is overbroad and divisible as to the specific

controlled substance. Accordingly, the panel applied the

modified categorical approach and concluded that the record

was inconclusive because Marinelarena’s guilty plea could

have rested on an overt act that did not relate to heroin. 

Addressing the effect of the inconclusive record, the panel

further held that Young v. Holder, 697 F.3d 976 (9th Cir.

2012) (en banc), which held that a petitioner cannot carry the

burden of demonstrating eligibility for cancellation of

removal by establishing an inconclusive record, remains good

law because it is not irreconcilable with the later Supreme

Court cases of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),

and Descamps v. United States, 133 S. Ct. 2276 (2013). 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MARINELARENA V. SESSIONS 3

Therefore, the panel concluded that Marinelarena is ineligible

for cancellation because, with respect to eligibility for relief,

she bears the burden of proof to show that her conviction did

not relate to a controlled substance, and she could not meet

this burden on an inconclusive record. 

The panel also concluded that it lacked jurisdiction to

consider Marinelarena’s unexhausted claim that the

expungement of her conviction removes it from the definition

of conviction under the immigration laws.

Dissenting, Judge Tashima disagreed with the majority’s

conclusion that Moncrieffe does not abrogate Young,

concluding that the decisions are irreconcilable. Judge

Tashima would grant the petition for review.

COUNSEL

Andrew Knapp (argued), Supervising Attorney; Laura Free

(argued), Isis Miranda (argued), Lilit Arabyan, and Eric M.

Sowatsky, Certified Law Students; Southwestern Law

School, Los Angeles, California; for Petitioner.

Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior

Litigation Counsel; Shelley R. Goad, Assistant Director;

Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, D.C.; for

Respondent.

Brian Goldman (argued), Orrick Herrington & Sutcliffe LLP,

San Francisco, California; Manuel Vargas and Andrew

Wachtenheim, Immigrant Defense Project, New York, New

York; Jayashri Srikantiah and Lisa Weissman-Ward,
4 MARINELARENA V. SESSIONS

Immigrants’ Rights Clinic, Mills Legal Clinic, Stanford Law

School, Stanford, California; for Amici Curiae Immigrant

Defense Project, American Immigration Lawyers

Association, Asian Americans Advancing Justice-Asian Law

Caucus, Community Legal Services in East Palo Alto,

Detention Watch Network, Florence Immigrant and Refugee

Rights Project, Heartland Alliance’s National Immigrant

Justice Center, Immigrant Legal Resource Center, National

Immigration Law Center, National Immigration Project of the

National Lawyers Guild, Northwest Immigrant Rights

Project, Public Counsel, and U.C. Davis Immigration Law

Clinic.

OPINION

GRABER, Circuit Judge:

Petitioner Aracely Marinelarena, a native and citizen of

Mexico, stands convicted of conspiring to sell and transport

a controlled substance in violation of California Penal Code

section 182(a)(1). After the federal government initiated

removal proceedings, she conceded removability but applied

for cancellation of removal under 8 U.S.C. § 1229b(b). The

immigration judge (“IJ”) denied relief. The Board of

Immigration Appeals (“BIA”) held that Petitioner had fallen

short of meeting her burden of proof, by failing to show that

her conviction was not for a disqualifying controlled

substance offense, and dismissed the appeal. We hold that

the conspiracy statute under which Petitioner was convicted

is overbroad but divisible, that Petitioner failed to carry her

burden of proof to demonstrate that her conviction did not

involve a federally controlled substance, and that she has

failed to exhaust the argument that expungement of her
MARINELARENA V. SESSIONS 5

conviction erases its immigration consequences. 

Accordingly, we deny the petition for review in part and

dismiss it in part.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner first entered the United States in 1992 without

admission or inspection. In 2000, she was convicted of false

personation of a public officer, in violation of California

Penal Code section 529. In 2006, the State of California filed

a criminal complaint against Petitioner that charged her with

one count of conspiring to commit a felony, in violation of

California Penal Code section 182(a)(1). Specifically, it

charged Petitioner with conspiring to sell and transport a

controlled substance in violation of California Health and

Safety Code section 11352. The criminal complaint alleged

several overt acts in furtherance of the conspiracy, one of

which—the transportation of three bags containing

heroin—referred to a particular controlled substance. On

March 26, 2007, pursuant to a plea of guilty, Petitioner was

convicted of violating California Penal Code section

182(a)(1). The state court sentenced her to 136 days’

imprisonment and three years’ probation.1

Two days later, the government served Petitioner with a

notice to appear for removal proceedings. The notice charged

Petitioner with removability as an alien who had remained in

1 At her removal hearings, Petitioner submitted the complaint to the

IJ and admitted that she was “convicted solely of Count 1 of the

Complaint,” which alleged that she had committed “the crime of

CONSPIRACY TO COMMIT A CRIME, in violation of PENAL CODE

SECTION 182(a)(1),” specifically, conspiring “to commit the crime of

SELL AND TRANSPORT, in violation of Section 11352 ofthe HEALTH

AND SAFETY Code.”
6 MARINELARENA V. SESSIONS

the United States longer than permitted, in violation of

8 U.S.C. § 1227(a)(1)(B). Petitioner conceded removability

but applied for cancellation of removal under 8 U.S.C.

§ 1229b(b). Around the same time, Petitioner filed separate

motions in state court to vacate her false personation and

conspiracy convictions under California Penal Code

section 1203.4. In 2009, California courts granted

Petitioner’s motions and vacated those convictions.

At a removal hearing in 2011, Petitioner argued that her

conspiracy conviction did not constitute a controlled

substance offense as defined by the Controlled Substances

Act, 21 U.S.C. § 802, because the conviction documents do

not specify the controlled substance. Petitioner also argued

that she was eligible for cancellation of removal because her

convictions had been vacated.

In 2012, the IJ held that Petitioner had failed to meet her

burden to demonstrate eligibility for cancellation of removal

and ordered her removed to Mexico. The IJ reasoned that

Petitioner had failed to show that she was eligible for relief

despite her convictions for false personation and conspiracy

to sell and transport a controlled substance. The IJ noted that

Petitioner’s false personation conviction under California

Penal Code section 529 appeared to qualify as a crime

involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). 

The IJ also noted that Petitioner’s conspiracy conviction

under California Penal Code section 182(a)(1) “for

conspiracy to distribute heroin” barred her from relief

because it was a disqualifying controlled substance offense. 

Lastly, although both convictions had been vacated, the IJ

held that, because the convictions were not vacated on the

merits, they remained valid for immigration purposes.
MARINELARENA V. SESSIONS 7

On appeal, the BIA held that Petitioner had failed to

establish that her conspiracy conviction did not qualify as a

controlled substance offense under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). The BIA explained that, although

California Health and Safety Code section 11352 is broader

than the Federal Controlled Substances Act, 21 U.S.C. § 802,

because the state law covers more drugs than the federal

definition, Petitioner submitted no evidence identifying the

controlled substance and, therefore, did not meet her burden

of proof. The BIA did not reach the IJ’s additional ruling that

Petitioner’s false personation conviction was a crime

involving moral turpitude. Nor did it reach the expungement

question, because Petitioner did not raise it in her briefing to

the BIA.

Petitioner timely petitions for review. We also granted a

motion by a group of interested entities to file a joint amicus

brief.

STANDARD OF REVIEW

We review de novo questions of law and constitutional

claims. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir.

2014).

DISCUSSION

A. Controlled Substance Offense

To be eligible for cancellation of removal under 8 U.S.C.

§ 1229b(b), a petitioner must meet the following

requirements: (1) have been physically present in the United

States for a continuous period of not less than 10 years

immediately preceding the date of application; (2) have been
8 MARINELARENA V. SESSIONS

a person of good moral character during that period; (3) not

have been convicted of, as applicable here, a controlled

substance offense; and (4) show that removal would cause

“exceptional and extremely unusual hardship” to a family

member who is a citizen of the United States or an alien

lawfully admitted for permanent residence. Our analysis

concerns the third requirement—that the petitioner not have

been convicted of a controlled substance offense.

To determine whether a state conviction qualifies as an

offense relating to a controlled substance as defined under

federal law, we employ the categorical and modified

categorical approaches set forth in Taylor v. United States,

495 U.S. 575 (1990). “First, we ask whether the state law is

a categorical match with a federal [controlled substance]

offense,” looking “only to the ‘statutory definitions’ of the

corresponding offenses.” United States v. Martinez-Lopez,

No. 14-50014, 2017 WL 3203552, at *3 (9th Cir. July 28,

2017) (en banc) (quoting Taylor, 495 U.S. at 600). “If a state

law proscribes the same amount of or less conduct than that

qualifying as a federal [controlled substance] offense, then

the two offenses are a categorical match.” Id. (internal

quotation marks omitted). That result would end our

analysis.

But if the offenses are not a categorical match, we

proceed to a second step, asking whether the overbroad

portion of the statute of conviction is “divisible,” meaning

that it “sets out one or more elements of the offense in the

alternative.” Id. at *4 (quoting Descamps v. United States,

133 S. Ct. 2276, 2281 (2013)). We will “consult

‘authoritative sources of state law’ to determine whether a

statute contains alternative elements defining multiple crimes

or alternative means by which a defendant might commit the
MARINELARENA V. SESSIONS 9

same crime.” Id. (quoting Mathis v. United States, 136 S. Ct.

2243, 2256 (2016)). Elements are “those circumstances on

which the jury must unanimously agree.” United States v.

Vega-Ortiz, 822 F.3d 1031, 1035 (9th Cir. 2016). If the

statute is divisible, “then we may proceed to the third step in

our analysis and apply the modified categorical approach.” 

Martinez-Lopez, 2017 WL 3203552, at *4. Under the

modified categorical approach, “we examine judicially

noticeable documents of conviction ‘to determine which

statutory phrase was the basis for the conviction.’” Id.

(quoting Descamps, 133 S. Ct. at 2285).

In short, only when a state statute is both overbroad and

divisible do we employ the modified categorical approach. 

We do so byexamining certain conviction-related documents,

including “the charging document, the terms of a plea

agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable judicial

record of this information.” United States v. Leal-Vega,

680 F.3d 1160, 1168 (9th Cir. 2012) (internal quotation marks

omitted).

We agree with Petitioner that California Penal Code

section 182(a)(1) is overbroad, meaning that the categorical

approach does not apply. But Petitioner also contends that

the statute is indivisible, precluding the modified categorical

approach, and therefore cannot qualify as a controlled

substance offense. We disagree.

1. Categorical Approach

California Penal Code section 182(a)(1) punishes a

broader range of conduct than either 8 U.S.C.
10 MARINELARENA V. SESSIONS

§ 1182(a)(2)(A)(i)(II) or § 1227(a)(2)(B)(i). A defendant

could be convicted under section 182(a)(1) for any criminal

conspiracy, whether or not it relates to a controlled substance. 

A conviction under section 182(a)(1), therefore, cannot count

as a controlled substance offense under the categorical

approach. See, e.g., United States v. Trent, 767 F.3d 1046,

1052 (10th Cir. 2014) (holding that a conspiracy conviction

under Okla. Stat. Ann. tit. 21, § 421(A)—a statute with text

similar to the text of Cal. Penal Code § 182(a)(1)—is not a

serious drug offense under the categorical approach because

“the statute could be violated in many ways that have nothing

to do with drugs”), cert. denied, 135 S. Ct. 1447 (2015),

abrogated on other grounds by Mathis, 136 S. Ct. at 2251.

2. Divisibility

Section 182(a) criminalizes the act of “two or more

persons [who] conspire: (1) To commit any crime.” 

(Emphasis added.) Here, we must consider whether the

conspiracy statute is divisible as to the target crime.2 Faced

with a statute that incorporates “any” California crime by

reference, we must “consult ‘authoritative sources of state

law’ to determine whether [the] statute contains alternative

elements defining multiple crimes or alternative means by

2 United States v. Garcia-Santana, 774 F.3d 528 (9thCir. 2014), does

not affect our analysis of whether the conspiracy statute, California Penal

Code section 182(a)(1), is divisible. Garcia-Santana held that Nevada’s

conspiracy statute, Nev. Rev. Stat. § 199.480, is overbroad because it does

not contain, as an element, an overt act. Garcia-Santana, 774 F.3d at 534. 

In a footnote, the opinion conveys that the omission of an overt act

requirement cannot be cured by resort to the modified categorical

approach to show that an overt act was proved in a given case. Id. at 534

n.3. As we discuss below in text, an overt act is a requirement for a

conspiracy conviction under California law.
MARINELARENA V. SESSIONS 11

which a defendant might commit the same crime.” MartinezLopez, 2017 WL 3203552, at *4 (quoting Mathis, 136 S. Ct.

at 2256). The key question is whether a jury must find the

purported element specifically. Here, the California Supreme

Court has supplied the answer.

California law requires jurors to agree unanimouslyon the

object crime of the conspiracy. “Under Penal Code section

182 the jury must also determine which felony defendants

conspired to commit, and if that felony is divided into

degrees, which degree of the felony they conspired to

commit.” People v. Horn, 524 P.2d 1300, 1304 (Cal. 1974)

(emphasis added); see also People v. Smith, 337 P.3d 1159,

1168 (Cal. 2014) (“A conviction of conspiracy requires proof

that the defendant and another person had the specific intent

to agree or conspire to commit an offense, as well as the

specific intent to commit the elements of that offense, together

with proof of the commission of an overt act . . . in

furtherance of the conspiracy.” (emphasis added) (internal

quotation marks omitted)).

Petitioner relies on a California Court of Appeal case,

People v. Vargas, 110 Cal. Rptr. 2d 210 (Ct. App. 2001), to

argue that section 182(a)(1) is indivisible. In Vargas, the

court considered whether jurors must agree unanimously on

all the object crimes of a multipurpose conspiracy, or if it is

enough for the jurors to agree that crime, generally, was the

object of the conspiracy. Id. at 244–47. The opinion has

caused uncertainty as to the jury unanimity requirement for

multipurpose conspiracy convictions in California. See, e.g.,

Trent, 767 F.3d at 1061 (citing Vargasfor the proposition that

some jurisdictions “may” not require that “the jury agree

unanimously on what crime the conspirators agreed to

commit”).
12 MARINELARENA V. SESSIONS

Whatever the California Court of Appeal intended to

convey in Vargas, the California Supreme Court has never

recognized a jury unanimity exception for multipurpose

conspiracies. Our task, when answering a question of state

law, is to follow the precedents of the state’s highest court. 

See United Bhd. of Carpenters & Joiners of Am. Local 586 v.

NLRB, 540 F.3d 957, 963 (9th Cir. 2008) (“In analyzing

questions of state law, we are bound by the decisions of the

state’s highest court.”); Ticknor v. Choice Hotels Int’l, Inc.,

265 F.3d 931, 939 (9th Cir. 2001) (“[F]ederal courts are

bound by the pronouncements of the state’s highest court on

applicable state law. . . . In assessing how a state’s highest

court would resolve a state law question—absent controlling

state authority—federal courts look to existing state law

without predicting potential changes in that law.” (internal

quotation marks omitted)). Because the California Supreme

Court requires that jurors agree on a specified object crime in

order to convict a person of conspiracy, California Penal

Code section 182(a)(1) is divisible.

3. Modified Categorical Approach

Because California Penal Code section 182(a)(1) is both

overbroad and divisible, we proceed to the modified

categorical approach, in which we examine the specifics of

Petitioner’s conviction. The only document in the record

relating to a controlled substance is the criminal complaint,

which shows that the target offense of the conspiracy was a

violation of California Health and SafetyCode section 11352. 

That target offense adds an additional layer to our analysis,

because California Health and Safety Code section 11352 is,

with respect to the specific controlled substance, itself an

overbroad but divisible statute to which the modified
MARINELARENA V. SESSIONS 13

categorical approach applies. Martinez-Lopez, 2017 WL

3203552, at *4–7.

The criminal complaint identifies transportation of heroin

in describing one of the overt acts alleged as part of the

charged conspiracy; no other drug is mentioned in the

criminal complaint. Heroin is a controlled substance under

federal law. See 21 U.S.C. § 802(6) (defining “controlled

substance” by reference to statutory schedule); 21 U.S.C.

§ 812, Schedule I(b)(10) (listing heroin on Schedule I). Even

so, the record in this case is inconclusive. The conspiracy

count to which Petitioner pleaded guilty does not identify the

particular controlled substance except in the list of overt acts. 

But there is no plea agreement, plea colloquy, judgment, or

other document in the record that reveals the factual basis for

Petitioner’s guilty plea. Because Petitioner’s guilty plea

could have rested on an overt act that did not relate to heroin,

we cannot conclusively connect the transportation of heroin

with her conviction. See Lara-Chacon v. Ashcroft, 345 F.3d

1148, 1152 (9th Cir. 2003) (noting that “[c]harging papers

alone are never sufficient” to establish the elements of

conviction (internal quotation marks omitted)); United States

v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (noting

that a charging document “contain[s] the elements of the

crime the government set[s] out to prove; it [does] not

establish the elements to which [the petitioner] admitted in

his guilty plea”).

On an inconclusive record, Petitioner is ineligible for

relief because, with respect to eligibility for relief, she bears

the burden of proof to show that her conviction did not relate

to a federally controlled substance. “If the evidence indicates

that one or more of the grounds for mandatory denial of the

application for relief may apply, the alien shall have the
14 MARINELARENA V. SESSIONS

burden of proving by a preponderance of the evidence that

such grounds do not apply.” 8 C.F.R. § 1240.8(d) (emphasis

added). In Young v. Holder, 697 F.3d 976, 990 (9th Cir.

2012) (en banc), we held that a “petitioner cannot carry the

burden of demonstrating eligibility for cancellation of

removal by establishing an inconclusive record of

conviction.” Petitioner argues that we must overrule that

aspect of Young because it is irreconcilable with a later

United States Supreme Court case, Moncrieffe v. Holder,

133 S. Ct. 1678, 1687 (2013). We turn to that pivotal issue.

B. Burden of Proof

If Young remains good law, Petitioner is ineligible for

cancellation of removal because the ambiguity in the record

prevents her from proving that her conviction did not relate

to a controlled substance as defined by federal law. A threejudge panel may “reject [a] prior opinion of this court” if an

intervening and inconsistent Supreme Court decision has

“undercut the theory or reasoning underlying the prior circuit

precedent in such a way that the cases are clearly

irreconcilable.” Miller, 335 F.3d at 900. Petitioner and

Amici contend that this standard is met because, under

Moncrieffe, the inquiry under the categorical approach is

whether “a conviction of the state offense necessarily

involved [the] facts equating to the generic federal offense.” 

133 S. Ct. at 1684 (emphasis added) (internal quotation marks

and brackets omitted). That inquiry, they assert, is purely a

question of law—not fact—as to which the burden of proof

is irrelevant. We disagree both as to the relevance of

Moncrieffe and as to the nature of the inquiry in the present

context.
MARINELARENA V. SESSIONS 15

In Young, the petitioner was removable and was found

ineligible for cancellation of removal on account of his

conviction for “sale/transportation/offer[ing] to sell” cocaine

base, an aggravated felony. 697 F.3d at 980–81. The record

of his conviction was inconclusive concerning the aggravated

felony designation.3 Because, in the REAL ID Act, Congress

“place[d] the burden of demonstrating eligibility for

cancellation of removal squarely on the noncitizen,” id. at

988, we held that the petitioner had the burden to establish

that he had not committed an aggravated felony, id. at 989;

see also 8 U.S.C. § 1229a(c)(4) (“An alien applying for relief

or protection from removal has the burden of proof . . . .”). 

The petitioner failed to satisfy his burden and, therefore, was

ineligible for relief from removal because the record was

inconclusive on this point. Young, 697 F.3d at 990.

In the later Supreme Court case, the petitioner had

pleaded guilty to possession with intent to distribute

marijuana in violation of a Georgia state law. Moncrieffe,

133 S. Ct. at 1683. The BIA found the petitioner removable

for having committed a drug-trafficking crime that is

punishable as a felony under the federal Controlled

Substances Act, thus making it an aggravated felony. Id.; see

also Moncrieffe v. Holder, 662 F.3d 387, 389–90 (5th Cir.

2011) (explaining the issue in the case as being whether the

petitioner was removable as charged for having committed

this crime). The Supreme Court asked and answered the

question whether the petitioner’s conviction could be

considered categorically an aggravated felony when the

3 The petitioner had pleaded guilty to a charging document that

alleged 14 different theories of how he could have committed the offense,

some of which were aggravated felonies and some of which were not. 

Young, 697 F.3d at 990.
16 MARINELARENA V. SESSIONS

Controlled Substances Act punishes the analogous offense as

both a felony and a misdemeanor. 133 S. Ct. at 1684–85. 

The Court held that the petitioner was not removable because

he had not been convicted of an aggravated felony; applying

the categorical approach, the Controlled Substances Act did

not “necessarily” punish as a felony all the conduct

proscribed under the Georgia statute. Id. at 1686–87.

Moncrieffe differs from Young because, among other

reasons, the two cases address entirely different legal issues. 

Moncrieffe addressed the question whether the petitioner was

removable, a question as to which the government bears the

burden of proof. Young Sun Shin v. Mukasey, 547 F.3d 1019,

1024 (9th Cir. 2008). By contrast, the relevant portion of

Young addressed only the question whether the petitioner was

eligible for cancellation of removal. As to that question, the

noncitizen, not the government, bears the burden of proof. 

8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d). Thus it is

Congress, not the Supreme Court, that assigned the burden of

proof to a noncitizen who seeks relief in the form of

cancellation of removal. See 8 U.S.C. § 1229a(c)(4) (“An

alien applying for relief or protection from removal has the

burden of proof to establish that the alien” is eligible.). The

Moncrieffe opinion does not cite that statute anywhere, and

for good reason. As noted, the issue before the Court

concerned removability, not relief from removal.

It is well established that the party who bears the burden

of proof loses if the record is inconclusive on the crucial

point. See, e.g., Schaffer ex rel. Schaffer v. Weast, 546 U.S.

49, 51 (2005) (holding that, under the Individuals with

Disabilities Education Act, whichever party seeks relief must

carry the burden of persuasion, whether it be the parents or

the school district); Dir., Office of Workers’ Comp. Programs
MARINELARENA V. SESSIONS 17

v. Greenwich Collieries, 512 U.S. 267, 272–81 (1994)

(holding that, under the Administrative Procedure Act, the

burden of proof encompasses the burden of persuasion; when

the evidence is evenly balanced, the party with the burden

must lose). Moncrieffe did not cite, let alone overrule, those

and similar cases recognizing the effect of the burden of proof

when the relevant evidence is in equipoise. That is because,

as discussed below, Moncrieffe is not about the burden of

proof.

Under Supreme Court law, when evidence is in equipoise,

the burden of persuasion determines the outcome. Nor is it

problematic that the same inconclusive evidence can result in

a favorable decision on removability (Moncrieffe) yet an

unfavorable decision on cancellation (Young). See Alvarez

Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,

1164–65 (11th Cir. 2008) (noting that two factual findings

were not inconsistent given that “it is logically possible for

the losing side to have varied with, because it depended on,

the burden of proof”); cf. United States v. Meza-Soria,

935 F.2d 166, 169 (9th Cir. 1991) (noting that “courts have

made it quite clear that because different standards of proof

are involved, acquittal in a criminal action does not bar a civil

suit based on the same facts” (internal quotation marks and

brackets omitted)). In Young, we joined the Fourth and Tenth

Circuits in recognizing that, when the burden of persuasion

rests on the noncitizen to show eligibility for cancellation of

removal, an inconclusive record fails to satisfy that burden. 

697 F.3d at 989 (citing Salem v. Holder, 647 F.3d 111,

115–16 (4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288,

1289–90 (10th Cir. 2009)); see also Syblis v. Att’y Gen. of

U.S., 763 F.3d 348, 356–57 (3d Cir. 2014) (reaching the same

conclusion, post-Moncrieffe); Sanchez v. Holder, 757 F.3d

712, 720 n.6 (7th Cir. 2014) (same). But see Sauceda v.
18 MARINELARENA V. SESSIONS

Lynch, 819 F.3d 526, 531, 532 & n.10 (1st Cir. 2016)

(rejecting Young and holding that Moncrieffe creates a

presumption that a defendant committed the “least of the

acts” that goes unrebutted when Shepard documents “shed no

light on the nature of the offense or conviction,” even in the

cancellation-of-removal context).4

To be sure, Moncrieffe acknowledged that its analysis for

determining whether a particular crime of conviction is

categorically a crime involving moral turpitude “is the same

in both” the removal and cancellation contexts. 133 S. Ct. at

1685 n.4 (citing Carachuri-Rosendo v. Holder, 560 U.S. 563

(2010), which considered whether the petitioner was eligible

for cancellation of removal after having committed two

simple possession offenses under Texas state law). And that

is true, so far as the discussion in Moncrieffe goes: 

“[c]onviction is the relevant statutory hook” whether

determining removability or eligibility for relief from

removal. Id. at 1685 (internal quotation marks omitted). But

Moncrieffe did not discuss the differences in the burden of

proof in those two contexts; it had no reason to. To the

contrary, the Court limited its rejection of the government’s

suggestion that a noncitizen should have an opportunity to

disprove the misdemeanor version of the Georgia statute to

the categorical context: “This solution is entirely

4

In Le v. Lynch, 819 F.3d 98, 108 (5th Cir. 2016), the court held that,

“[n]otwithstanding the inconclusive evidence in the instant case, . . . the

burden remains on [the petitioner] to prove eligibility for relief from

removal.” But there, the ambiguity did not rest on a divisible statute, and

the court declined to decide “whether Moncrieffe affected how courts

should apply the modified categorical approach to determine whether a

prior conviction disqualifies a noncitizen from relief from removal when

the record of conviction is ambiguous as to whether the elements of the

crime correspond to a disqualifying offense.” Id. at 107 n.5.
MARINELARENA V. SESSIONS 19

inconsistent with both the INA’s text [8 U.S.C.

§§ 1227(a)(2)(A)(iii), 1229b(a)(3)] and the categorical

approach.” Moncrieffe, 133 S. Ct. at 1690 (emphasis added). 

Moncrieffe therefore cannot be read to inform the relevant

dispute in Young, which pertained only to the operation of the

burden of proof when the modified categorical approach

applies.5

For all these reasons, Moncrieffe and Young are not

clearly irreconcilable.

We are equally unpersuaded by Petitioner and Amici’s

argument that the modified categorical approach involves

only a legal inquiry and that the burden of proof is irrelevant

after Moncrieffe and Descamps. As noted, Moncrieffe did not

decide or even suggest anything about the burden of proof. 

Descamps, for its part, did not intimate that every inquiry

under the modified categorical approach is a question of law;

it simply held that the modified categorical approach was “a

tool for implementing the categorical approach” and,

therefore, could not be applied to indivisible statutes. 133 S.

Ct. at 2284, 2286–87.

5 Amici also contend that Young is clearly irreconcilable with

Moncrieffe because of the latter’s statement that “[t]he categorical

approach was designed to avoid” inconsistent treatment of “two

noncitizens . . . ‘convicted of’ the same offense.” Moncrieffe, 133 S. Ct.

at 1690. The Court made that comment in the context of applying the

categorical approach, not the modified categorical approach. And Amici’s

proposed solution—overruling Young and allowing relief when the record

of conviction is ambiguous—would not eliminate the prospect of

inconsistent results: The opportunity for individuals, convicted of a given

offense, to obtain relief would still vary depending on the record’s clarity,

as only the default rule would change. Such a rule therefore would not

ameliorate Amici’s concern about inconsistent treatment of similarly

situated persons.
20 MARINELARENA V. SESSIONS

Although the modified categorical approach, like the

categorical approach, involves some strictly legal

issues—such as a statute’s divisibility—the inquiry into

which part of a divisible statute underlies the petitioner’s

crime of conviction is, if not factual, at least a mixed question

of law and fact.6“[M]ixed questions of law and fact” are

those in which “the historical facts are admitted or

established, the rule of law is undisputed, and the issue is

whether the facts satisfy the statutory standard.” PullmanStandard v. Swint, 456 U.S. 273, 289 n.19 (1982). The

modified categorical approach squarely fits within that

definition. See Descamps, 133 S. Ct. at 2284–85 (explaining

that, under the modified categorical approach, courts may

review approved “extra-statutory materials . . . [to] discover

which statutory phrase contained within a statute listing

several different crimes[] covered a prior conviction.”

(internal quotation marks omitted)); Taylor, 495 U.S. at 600

(holding that, under the categorical approach, courts “look

only to the fact that the defendant had been convicted of”

certain crimes (emphasis added)); see also Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a

prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

(emphasis added)).

6 At least one other circuit has held that the determination of the

offense of conviction is a purely factual inquiry. See Le, 819 F.3d at 105

(“[T]he alien has the burden of proof to establish that he satisfies the

applicable eligibility requirements in order to prove that any grounds for

denial do not apply. When an alien’s prior conviction is at issue, the

offense of conviction itself is a factual determination, not a legal one. 

However, determining whether that conviction is a particular type of

generic offense is a legal question.” (emphasis added) (citations omitted)).
MARINELARENA V. SESSIONS 21

When reviewing mixed questions of law and fact, we

regularly consider the burden of persuasion. See, e.g.,

Dorrance v. United States, 809 F.3d 479, 484 (9th Cir. 2015)

(stating that the question whether taxpayers had a cost basis

in assets that they later sold, but for which they paid nothing,

“is a mixed question of law and fact” as to which the

taxpayers bear the burden of persuasion); United States v.

Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013) (noting that

“[t]he issue of whether a person has actual or apparent

authority to consent to a search is a mixed question of law

and fact” and that “the government has the burden of

establishing the effectiveness of a third party’s consent to a

search”); United States v. Blackman, 72 F.3d 1418, 1423 (9th

Cir. 1995) (stating that we review de novo the district court’s

rulings on the scope of the attorney-client privilege because

they involve “mixed questions of law and fact” and that the

burden of persuasion is on the party seeking to establish that

the privilege applies); United States v. Lingenfelter, 997 F.2d

632, 636, 637 (9th Cir. 1993) (stating that whether police

conduct amounts to a “search” within the meaning of the

Fourth Amendment is “a mixed question of law and fact” and

that the defendant bears the burden of demonstrating that he

or she had a legitimate expectation of privacy in the place

searched).

To summarize, Moncrieffe is about removal; by contrast,

Young is about cancellation of removal. Moncrieffe discusses

how the categorical approach works when defining a crime

involving moral turpitude and says nothing at all about

operation of the burden of proof, which was not an issue in

that case. Young discusses the burden of proof when

applying the modified categorical approach. Although

Descampsmakes clear that the modified categorical approach

is “a tool for implementing the categorical approach,” 133 S.
22 MARINELARENA V. SESSIONS

Ct. at 2284, it is a tool that requires the consideration of

factual documents within the context of the law and, by that

process, makes the burden of proof relevant. Thus, neither

Moncrieffe nor Descampsrequires us to overrule Young. The

decisions are not clearly irreconcilable.

C. Expungement

Finally, Petitioner argues that the expungement of her

conspiracy conviction removes it from the definition of

“conviction” under 8 U.S.C. § 1101(a)(48)(A).7 Specifically,

she challenges our deference to the BIA’s interpretation of

§ 1101(a)(48)(A). See Murillo-Espinoza v. INS, 261 F.3d

771, 774 (9th Cir. 2001) (adopting the BIA’s interpretation of

§ 1101(a)(48)(A) in In re Roldan, 22 I. & N. Dec. 512 (B.I.A.

1999) (en banc), as “preclud[ing] the recognition of

subsequent state rehabilitative expungements of

convictions”).

Petitioner did not present that claim to the BIA, and it is

not exhausted. We lack jurisdiction over an unexhausted

claim. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004) (holding that 8 U.S.C. § 1252(d)(1) “mandates

7

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

The term “conviction” means, with respect to an

alien, a formal judgment of guilt of the alien entered by

a court or, if adjudication of guilt has been withheld,

where—(i) a judge or jury has found the alien guilty or

the alien has entered a plea of guilty or nolo contendere

or has admitted sufficient facts to warrant a finding of

guilt, and (ii) the judge has ordered some form of

punishment, penalty, or restraint on the alien’s liberty

to be imposed.
MARINELARENA V. SESSIONS 23

exhaustion and therefore generally bars us, for lack of

subject-matter jurisdiction, from reaching the merits of a legal

claim not presented in administrative proceedings below”). 

Accordingly, we must dismiss the expungement claim.8

Petition DENIED IN PART and DISMISSED IN

PART.

TASHIMA, Circuit Judge, dissenting:

The majority holds that Young v. Holder, 697 F.3d 976

(9th Cir. 2012) (en banc), remains good law because it is not

clearly irreconcilable with Moncrieffe v. Holder, 133 S. Ct.

1678 (2013). Maj. Op. at 19. Under Young, Marinelarena

must prove that she was not convicted of a controlled

substance offense in order to establish her eligibility for

cancellation of removal. Because the record is ambiguous on

this point, the majority reasons, Marinelarena cannot satisfy

her burden of proof and is thus ineligible for relief. Id. at 13. 

I disagree with the majority’s conclusion that Moncrieffe does

not abrogate Young. Under Moncrieffe, the ambiguity in the

record as to Marinelarena’s offense of conviction means that

8 Even if we agreed with Petitioner that this claim qualifies for an

exception to the exhaustion requirement, we have rejected a similar

argument on the merits. See Reyes v. Lynch, 834 F.3d 1104, 1108 (9th

Cir. 2016) (holding that, even though a California court set aside a

petitioner’s earlier nolo contendere plea, a “state conviction expunged

under state law is still a conviction for purposes of eligibility for

cancellation of removal and adjustment of status,” even when the

petitioner was never incarcerated, because “the alien was punished or his

liberty was restrained by the terms of his probation”).
24 MARINELARENA V. SESSIONS

she has not committed an offense disqualifying her from

relief. I respectfully dissent.

In Moncrieffe, the Supreme Court explained the

framework for applying the categorical approach to determine

whether a noncitizen has committed an aggravated felony, as

defined by the Immigration and Nationality Act. 133 S. Ct.

at 1684–85. In cases applying the categorical approach,

courts compare the elements of a noncitizen’s offense of

conviction to those of a generic federal offense that would

disqualify her from relief. Descamps v. United States, 133 S.

Ct. 2276, 2283 (2013). The Court in Moncrieffe specified

that, under the categorical approach, courts should “look ‘not

to the facts of the particular prior case,’ but instead to

whether ‘the state statute defining the crime of conviction’

categorically fits within the ‘generic’ federal definition of a

corresponding aggravated felony.” Moncrieffe, 133 S. Ct. at

1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,

186 (2007)). “[A] state offense is a categorical match with a

general federal offense only if a conviction of the state

offense ‘necessarily involved . . . facts equating to [the]

general [federal offense].’” Id. (emphasis added) (quoting

Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality

opinion)). “Whetherthe noncitizen’s actual conduct involved

such facts is ‘quite irrelevant.’” Id. (quoting United States ex

rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)).

The Court further stated that, if a statute contains

multiple, alternative versions of a crime (that is, if the

modified categorical approach applies), “a court may

determine which particular offense the noncitizen was

convicted of by examining the charging document and jury

instructions, or in the case of a guilty plea, the plea

agreement, plea colloquy, or ‘some comparable judicial
MARINELARENA V. SESSIONS 25

record of the factual basis for the plea.’” Id. (emphasis

added) (quotingNijhawan v. Holder, 557 U.S. 29, 35 (2009)). 

The Court labeled this inquiry as a whole “the categorical

approach,” as opposed to distinguishing between the

categorical and modified categorical approaches. Id. at 1685.

In Moncrieffe, the government argued that the petitioner

had committed a “felony punishable under the Controlled

Substances Act” (“CSA”), which qualifies as an aggravated

felony that would allow the petitioner to be deported. 

Moncrieffe, 133 S. Ct. at 1683. The Court disagreed. Id. at

1684. The record established that Moncrieffe had been

convicted under a state statute proscribing conduct that

constitutes an offense under the CSA, but the record was

ambiguous as to whether the CSA would “‘necessarily’

prescribe felony punishment for that conduct.” Id. at 1685

(emphasis added). The Supreme Court held that “[a]mbiguity

on this point means that the conviction did not ‘necessarily’

involve facts that correspond to an offense punishable as a

felony under the CSA.” Id. at 1687. “Under the categorical

approach, then, Moncrieffe was not convicted of an

aggravated felony” allowing him to be deported. Id.

This analysis is clearly irreconcilable with Young. Young

holds that ambiguity in the record as to whether the

noncitizen committed an aggravated felony means that she

was convicted of the offense for purposes of the immigration

statutes. Young, 697 F.3d at 988–99. Moncrieffe holds the

opposite: If the record does not conclusively establish that

the noncitizen committed the offense, then she was not

convicted of the offense for purposes of the immigration

statutes. Moncrieffe, 133 S. Ct. at 1687.
26 MARINELARENA V. SESSIONS

The majority’s arguments to the contrary are

unpersuasive. The majority first contends that Moncrieffe

does not control because it “addressed the question whether

the petitioner was removable, a question as to which the

government bears the burden of proof,” while this case

concerns cancellation of removal, for which an applicant

bears the burden of proving eligibility. Maj. Op. at 16. But

Moncrieffe itself explicitly forecloses this distinction,

explaining that the categorical “analysis is the same in both

[the removal and cancellation of removal] contexts.” 

Moncrieffe, 133 S. Ct. at 1685 n.4 (emphasis added). Under

Moncrieffe, the framework for applying the categorical and

modified categorical approaches does not depend on which

party bears the burden of proof in a particular kind of

immigration proceeding.

The majority sidesteps this explicit instruction by arguing

that Moncrieffe “limited” its holding “to the categorical

context.” Maj. Op. at 18–19. Per the majority, “Moncrieffe

therefore cannot be read to inform the relevant dispute in

Young, which pertained only to the operation of the burden of

proof when the modified categorical approach applies.” Maj.

Op. at 19 (footnote omitted). This purported distinction

overstates the difference between the categorical and

modified categorical approaches. As the Supreme Court has

noted, the modified categorical approach is “a tool for

implementing the categorical approach” that allows a court

“to examine a limited class of documents to determine which

of a statute’s alternative elements formed the basis of the

defendant’s prior conviction.” Descamps v. United States,

133 S. Ct. 2276, 2284 (2013).

Thus, in Moncrieffe, the Court outlined both what we

have called the “categorical” step of the analysis and the
MARINELARENA V. SESSIONS 27

“modified categorical” step of the analysis, and then labeled

the inquiry as a whole “the categorical approach.” 

Moncrieffe, 133 S. Ct. at 1684–85 (outlining the categorical

and modified categorical analysis and stating that “[t]his

categorical approach has a long pedigree in our Nation’s

immigration law”). That is because the relevant inquiry in

both categorical and modified categorical cases is the same: 

A court must compare the elements of the offense of which

the noncitizen was convicted to the elements of a generic

federal offense disqualifying her from relief, and then

determine what facts are necessarily established by that

conviction. The only difference between the two approaches

is that, in modified categorical cases, a statute lists “multiple,

alternative versions of [a] crime,” Descamps, 133 S. Ct. at

2284, so the court must look to the record of conviction to

determine “which particular offense the noncitizen was

convicted of.” Moncrieffe, 133 S. Ct. at 1684. Once that

determination is made, the relevant question is the same as

that in categorical cases: A court must ask what the

noncitizen’s conviction necessarily involved, “not what acts

[the noncitizen] committed.” Id. at 1685.

In Mathis v. United States, 136 S. Ct. 2243 (2016), the

Supreme Court reaffirmed that the categorical and modified

categorical approaches involve the same analysis. The Court

stated that, “when a statute sets out a single (or ‘indivisible’)

set of elements to define a single crime,” a court should

“line[] up that crime’s elements alongside those of the generic

offense and see[] if they match.” Id. at 2248. “Some statutes,

however, have a more complicated (sometimes called

‘divisible’) structure, making the comparison of elements

harder.” Id. at 2249. Cases involving such statutes apply the

modified categorical approach. Under this approach, “a

sentencing court looks to a limited class of documents (for
28 MARINELARENA V. SESSIONS

example, the indictment, jury instructions, or plea agreement

and colloquy) to determine what crime, with what elements,

a defendant was convicted of.” Id. “The court can then

compare that crime, as the categorical approach commands,

with the relevant generic offense.” Id. (emphasis added).1

In other words, whether a case applies what we have

called the “categorical” or the “modified categorical”

approach, the analysis is the same: The court asks whether

the noncitizen was necessarily convicted of an offense

disqualifying her from relief. If the record of conviction is

ambiguous on this point – as it is in this case – then her

“conviction did not ‘necessarily’ involve facts that

correspond to” a disqualifying offense. Moncrieffe, 133 S.

Ct. at 1687 (emphasis added). Thus, under the modified

categorical approach, Marinelarena was not convicted of a

controlled substance offense under federal law.2

1 The majority contends that “the inquiry into which part of a divisible

statute underlies the petitioner’s crime of conviction is, if not factual, at

least a mixed question of law and fact” because the inquiry requires the

court to examine certain documents in the record of conviction. Maj. Op.

at 20. This argument misses the mark. The relevant point is that, under

the modified categorical approach, the court looks at those documents

only to determine which crime the petitioner was convicted of, and

whether that crime’s elements match those of a disqualifying generic

offense. This is a purely legal inquiry. See Descamps, 133 S. Ct. at 2293

(“The modified approach does not authorize a sentencing court to

substitute . . . a facts-based inquiry for an elements-based one.”).

2 Although this is an open question in our circuit, another panel

recently has characterized Moncrieffe, 133 S. Ct. at 1678, as “suggest[ing]

an inconclusive record works to a petitioner’s advantage, regardless of

which party bears the burden of proof.” Lozano-Arredondo v. Sessions,

2017 WL 3393454, at *4 (9th Cir. Aug. 8, 2017) (citing Almanza-Arenas

v. Lynch, 815 F.3d 469, 488–89 (9th Cir. 2016) (en banc) (Watford, J.,

concurring in the judgment). In Almanza-Arenas, Judge Watford noted
MARINELARENA V. SESSIONS 29

I would grant the petition and respectfully dissent.

that “our decision in Young [is] fundamentally incompatible with the

categorical approach, especially after Descamps and Moncrieffe clarified

the elements-focused nature of the inquiry.” Almanza-Arenas, 815 F.3d

at 489.