Mariaelena v. Sessions, No. 14-72003 (Graber with Silverman; dissent from Tashima) --- The Ninth Circuit denied a petition for review of an order of the Board of Immigration Appeals, holding that the petitioner had been convicted of a "controlled substances offense" under Cal. Penal Code § 182(a)(1), and thus was ineligible for cancellation of removal.

The petitioner was convicted of, among other crimes, conspiracy to commit a crime, in violation of Cal. Penal Code § 182(a)(1), specifically conspiracy to sell and transport drugs, in violation of Cal. Health & Safety Code § 11352.  Applying the framework from the recent en banc decision in United States v. Martinez-Lopez, No. 14-50014, the court held that § 182(a)(1) was overbroad because it penalized conspiracy to commit any crime, not just a drug trafficking offense.  The court also held that § 182(a)(1) was divisible because the California Supreme Court had held that a jury had to be unanimous as to the target crime of the conspiracy.  Thus the court held that the modified categorical approach was available, and that was where the panel divided. 

Under Martinez-Lopez, the modified categorical approach is available to determine if the type of drug actually involved in the conspiracy involved in the petitioner's conviction was on a federal schedule.  Here, however, the judicially noticeable documents did not reveal the factual basis of the petitioner's guilty plea, and thus the record was inconclusive as to whether the conviction was for a "controlled substances offense."  Because the petitioner bears the burden of proof of eligibility for cancellation of removal, she would lose under Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).  The petitioner argued that Young was irreconcilable with Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and thus had been implicitly overruled.  The panel majority disagreed, because Moncrieffe was about removal, as to which the government bears the burden of proof.  There was nothing "clearly irreconcilable" about an alien winning on an issue where the government bears the burden of proof but losing on an issue as to which she bears the burden of proof.  Moreover, Moncrieffe was about the categorical approach, whereas Young was about the modified categorical approach, where the burden of proof matters.

Judge Tashima dissented, explaining that he believed Moncrieffe to be irreconcilable with Young.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/14-72003.pdf