Drug conviction does not necessarily result in removal order for undocumented immigrants
Marinelarena v. Barr, 2019 WL 3227458; (9th Cir. July 18, 2019)
Immigrants with drug convictions are eligible for immigration relief when the record of conviction is vague as to the type of controlled substance.
Conviction for conspiracy to sell and transport a controlled substance
Marinelarena, a native and citizen of Mexico, first entered the United States in 1992, where she has lived continuously, except for a brief break. In 2006, she was charged with one count of conspiracy to commit a felony in violation of California Penal Code § 182(a)(1), conspiring to sell and transport a controlled substance in violation of California Health and Safety Code § 11352.2 The complaint listed a number of overt acts in support, only one of which referenced a specific controlled substance, heroin. Marinelarena pleaded guilty and was convicted of violating California Penal Code § 182(a)(1) on March 26, 2007.
Controlled substance offense and cancellation of removal
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b), Marinelarena must show she has not been convicted of a “controlled substance” offense, 8 U. S. C. § 1182(a)(2)(A)(i)(II). Whether Marinelarena’s California-state-law conviction for conspiracy to sell and transport a controlled substance constitutes a controlled substance offense under federal law for the purposes of § 1229b(b). was the central issue on appeal.
In determining whether a state conviction constitutes a predicate offense for immigration purposes, this court employs the three-step process derived from Taylor v. United States, 495 U.S. 575, (1990).
1. Determine whether the state law is a categorical match with a federal controlled substance offense by looking only to the statutory definitions of the corresponding offenses. If a state law proscribes the same amount of or less conduct than that qualifying as a federal drug trafficking offense, then the two offenses are a categorical match.
2. If the state statute criminalizes a broader range of conduct than does the federal offense the court asks whether the statute of conviction is “divisible.” A state offense is “divisible” if it has “ ‘multiple, alternative elements, and so effectively creates several different crimes.’ Alternatively, if the offense has a ‘single, indivisible set of elements’ with different means of committing one crime, then it is indivisible and the court will conclude that there is no categorical match.
3. If the statute is both overbroad and divisible, we continue to the third step and apply the “modified categorical approach.” At this step, the court examines judicially noticeable documents of conviction ‘to determine which statutory phrase was the basis for the conviction.’ The Court may consider only a restricted set of materials, including the charging document, the terms of a plea agreement, the transcript of the colloquy, and comparable judicial records. The focus of the examination is on whether petitioner was “necessarily” convicted of a state-law crime with the same “basic elements” as the generic federal crime, not on the underlying facts of the conviction.
The Court agreed that California Penal Code § 182(a)(1) is overbroad, and assumed for purposes of this appeal that it is divisible. Therefore, it applied the modified categorical approach.
Marinelarena’s conspiracy conviction was not a categorical match to the relevant generic federal offense. California Penal Code § 182(a)(1) punishes a broader range of conduct than either 8 U.S.C. § 1182(a)(2)(A)(i)(II) or § 1227(a)(2)(B)(I). A defendant could be convicted under § 182(a)(1) for any criminal conspiracy, whether or not it relates to a controlled substance. A conviction under § 182(a)(1), therefore, cannot count as a controlled substance offense under the categorical approach.
Modified Categorical Approach
We proceed to step three, the modified categorical approach, and “examine judicially noticeable documents of conviction” to determine the basis for petitioner’s conviction. The only judicially noticeable document in the record relating to Marinelarena’s criminal offense is the criminal complaint, which identifies the target offense of the conspiracy as selling and transporting a controlled substance in violation of California Health and Safety Code § 11352.
The complaint identified sixteen overt acts, only one of which references a specific controlled substance, heroin. But a complaint alone is insufficient to prove a conviction related to a particular controlled substance, see Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003) (noting that where a defendant enters a guilty plea, “charging papers alone are never sufficient” to establish the elements of conviction. Even though heroin is a controlled substance under federal law, the record is inconclusive as to whether Marinelarena’s plea included the sole heroin allegation in the complaint, which was not necessary to conviction for the conspiracy offense. Because Marinelarena’s guilty plea could have rested on an overt act that did not relate to heroin, we cannot assume her conviction was predicated on an act involving a federal controlled substance. Thus, the record of her conviction is ambiguous as to whether Marinelarena’s conviction related to a federal controlled substance.
The Court granted Marinelarena’s petition for review because the record of conviction is ambiguous as to whether she was convicted of conspiring to sell and transport a controlled substance as defined under federal law. Because the record of conviction did not show that Marinelarena’s state-law conviction was “necessarily” for an offense corresponding to a federal controlled substance offense, she is not barred from relief under 8 U.S.C. § 1229b(b).