                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GABRIEL ALMANZA-ARENAS,                  No. 09-71415
                    Petitioner,
                                          Agency No.
                v.                       A078-755-092

ERIC H. HOLDER, JR., Attorney
General,
                        Respondent.



GABRIEL ALMANZA-ARENAS,                  No. 10-73715
                    Petitioner,
                                          Agency No.
                v.                       A078-755-092

ERIC H. HOLDER, JR., Attorney
General,                                  OPINION
                        Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

               Argued and Submitted
          May 7, 2013—Pasadena, California

               Filed November 10, 2014
2                ALMANZA-ARENAS V. HOLDER

    Before: Harry Pregerson and Raymond C. Fisher, Circuit
          Judges, and James S. Gwin, District Judge.*

                 Opinion by Judge Pregerson;
              Partial Concurrence by Judge Fisher


                           SUMMARY**


                            Immigration

    The panel granted Gabriel Almanza-Arenas’s petition for
review of the Board of Immigration Appeals’ published
decision, Matter of Almanza-Arenas, 24 I. & N. Dec. 771
(BIA 2009), which held that a California state law conviction
for vehicle theft constitutes a crime involving moral
turpitude.

    The panel held that Almanza-Arenas’s conviction
pursuant to California Vehicle Code § 10851(a) was not a
categorical crime of moral turpitude, because it punishes both
automobile theft, a permanent taking which is a CIMT, and
joyriding, a temporary taking which is not. The panel also
held that because the statute provides alternative means by
which the offense may be committed, but not alternative
elements, it is an indivisible statute, and the BIA thus erred in
applying the modified categorical approach.


    *
   The Honorable James S. Gwin, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              ALMANZA-ARENAS V. HOLDER                      3

    The panel, however, proceeded to apply the modified
categorical approach, in order to demonstrate and correct the
BIA’s error. The panel held that because the record was
inconclusive as to whether Almanza-Arenas was convicted of
temporarily or permanently taking a vehicle, the BIA erred in
finding him ineligible for cancellation of removal. The panel
further held that the holding in Young v. Holder, 697 F.3d 976
(9th Cir. 2012) (en banc) (a petitioner cannot fulfill his
burden to demonstrate eligibility for cancellation by
establishing an inconclusive record), has been abrogated in
part by the holding in Moncrieffe v. Holder, 133 S. Ct. 1678
(2013) (an alien convicted under a state statute whose
elements are not “necessarily” the same as the generic federal
disqualifying offense remains eligible for cancellation). The
panel remanded to the BIA for further proceedings.

    Judge Fisher concurred in part with the majority opinion,
and concurred in the result. However, Judge Fisher would
find that because CVC § 10851(a) is indivisible, the panel did
not need to proceed to apply the modified categorical
approach and decide that Young was abrogated in part by
Moncrieffe.


                        COUNSEL

Michael J. Codner (argued) and Murray D. Hilts, Law Offices
of Murray D. Hilts, San Diego, California, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel; Tony
West, Assistant Attorney General; Leslie McKay, Assistant
Director; Stefanie Notarino Hennes, Trial Attorney, United
States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent.
4             ALMANZA-ARENAS V. HOLDER

Jayashri Srikantiah, and Alison Kamhi, Immigrant’s Rights
Clinic, Mills Legal Clinic, Stanford Law School, Stanford,
California; Manuel Vargas and Isaac Wheeler, Immigrant
Defense Project, New York, New York, for Amicus Curiae
Immigrant Defense Project, National Immigration Project of
the National Lawyers Guild, Immigrant Legal Resource
Center, and Federal Defenders of San Diego.


                        OPINION

PREGERSON, Circuit Judge:

    Petitioner Gabriel Almanza-Arenas (“Almanza-Arenas”)
petitions for review of a Board of Immigration Appeals’s
(“BIA”) decision affirming a final order of removal. The
BIA held that Almanza-Arenas was ineligible for cancellation
of removal because he was convicted of a crime involving
moral turpitude. Almanza-Arenas was convicted under
California Vehicle Code § 10851(a), a statute that
criminalizes both conduct that would constitute a crime of
moral turpitude, and conduct that does not amount to a crime
of moral turpitude. We hold that Almanza-Arenas’s
California Vehicle Code § 10851(a) conviction was not for a
crime of moral turpitude and does not render him ineligible
for cancellation of removal. Thus, we grant Almanza-
Arenas’s petition and remand to the BIA for further
proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

   Almanza-Arenas is a native and citizen of Mexico. On
September 12, 2000, Almanza-Arenas pled nolo contendere
                  ALMANZA-ARENAS V. HOLDER                                5

under People v. West, 3 Cal. 3d 595 (1970),1 to a
misdemeanor violation of California Vehicle Code
§ 10851(a).2 California Vehicle Code § 10851(a) punishes
both automobile theft (which is a crime of moral turpitude),
and joyriding (which is not a crime of moral turpitude). The
California Superior Court sentenced Almanza-Arenas to
twenty-four days in county jail.

    Five years later, on or about January 26, 2005, Almanza-
Arenas was taken into custody by a United States Customs
and Border Protection (“CBP”) agent at the Greyhound Bus
Station in San Diego, California, after “he admitted that he
was present in the United States without the proper
immigration documents to be or remain here legally.” On
February 1, 2005, the Department of Homeland Security
(“DHS”) served Almanza-Arenas with a Notice to Appear.
The Notice to Appear charged Almanza-Arenas with being

     1
    A plea under People v. West is “a plea of nolo contendere, not
admitting a factual basis for the plea.” In re Alvernaz, 2 Cal. 4th 924, 932
(1992).
 2
     California Vehicle Code § 10851(a) provides:

          Any 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, or any person who is a party or an accessory to
          or an accomplice in the driving or unauthorized taking
          or stealing, is guilty of a public offense and, upon
          conviction thereof, shall be punished by imprisonment
          in a county jail for not more than one year or pursuant
          to subdivision (h) of Section 1170 of the Penal Code or
          by a fine of not more than five thousand dollars
          ($5,000), or by both the fine and imprisonment.
6                 ALMANZA-ARENAS V. HOLDER

removable from the United States as an alien present in the
country without being admitted or paroled, pursuant to the
Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i),
8 U.S.C. § 1182(a)(6)(A)(i).

   On July 21, 2005, Almanza-Arenas appeared with counsel
before an immigration judge (“IJ”) in San Diego. He
conceded removability and applied for cancellation of
removal under 8 U.S.C. § 1229b(b)(1)3 and voluntary
departure under 8 U.S.C. § 1229c(b)(1). In his application for
cancellation of removal, Almanza-Arenas disclosed his
California Vehicle Code § 10851(a) conviction.

    At a later hearing on November 3, 2005, DHS argued that
Almanza-Arenas’s conviction disqualified him from
cancellation of removal because a conviction under California
Vehicle Code § 10851(a) is for a crime involving moral
turpitude. To commit a crime of moral turpitude a “person
must have behaved in a way that is inherently base, vile, or
depraved.” Castillo-Cruz v. Holder, 581 F.3d 1154, 1160
(9th Cir. 2009) (internal citation and quotation marks
omitted). At the same hearing, DHS also placed into
evidence three state court documents: (1) a felony complaint
charging Almanza-Arenas with a violation of California
Vehicle Code § 10851(a), (2) a copy of Almanza-Arenas’s
September 12, 2000 plea of nolo contendere pursuant to
People v. West to a misdemeanor violation of California


 3
   To be eligible for cancellation of removal, an individual must: (1) have
been physically present in the United States for at least ten years, (2) have
been a person of good moral character during that period, (3) not have
been convicted of a listed offense, and (4) establish that removal would
result in extreme and unusual hardship to a qualifying U.S. citizen or
permanent resident relative. 8 U.S.C. § 1229b(b)(1).
               ALMANZA-ARENAS V. HOLDER                      7

Vehicle Code § 10851(a), and (3) a judgment showing that
Almanza-Arenas received a sentence of twenty-four days
time served. DHS did not place into evidence the transcript
of Almanza-Arenas’s plea colloquy for this conviction.

     At the next hearing on February 16, 2006, the IJ asked
Almanza-Arenas whether he was in the process of obtaining
the transcript of the plea colloquy to show the basis of his
nolo contendere plea under California Vehicle Code
§ 10851(a). Counsel explained that he was not in the process
of obtaining the transcript, but would try to obtain it. Later,
at the merits hearing on November 1, 2006, the IJ noted that
Almanza-Arenas did not present the transcript of the plea
colloquy. Almanza-Arenas’s counsel argued that the
reference to People v. West in the plea agreement indicated
that the plea was made with “no admission to the facts,” and
that the transcript of the plea colloquy was not necessary
because it would be “consistent with” the documents the
government had already submitted into evidence. The IJ
denied Almanza-Arenas’s petition for cancellation of
removal.

    On April 13, 2009, the BIA published a decision
affirming the IJ’s holding and dismissing Almanza-Arenas’s
appeal. See Matter of Almanza-Arenas, 24 I. & N. Dec. 771
(B.I.A. 2009). The BIA held that, pursuant to United States
v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), the IJ
properly requested the transcript of the plea colloquy from
Almanza-Arenas’s California Vehicle Code § 10851(a)
conviction. The BIA explained that there was “ambiguity in
[Almanza-Arenas’s] conviction record resulting from the
notation to People v. West.”
8                ALMANZA-ARENAS V. HOLDER

    The BIA further explained that Almanza-Arenas “failed
to meet his burden of proof to establish that he was not
convicted of a crime involving moral turpitude” under
8 U.S.C. § 1229a(c)(4)(A)(i) and (B). The BIA concluded
that Almanza-Arenas (1) “produc[ed] the inconclusive
portions of a record of conviction,” and (2) “fail[ed] to
comply with an appropriate request from the [IJ].”4 Matter of
Almanza-Arenas, 24 I. & N at 776.

    Almanza-Arenas appeals the BIA’s ruling. We have
jurisdiction to review questions of law in a petition for review
of the denial of cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B), (D).

                          II. ANALYSIS

    Whether a conviction is for a crime involving moral
turpitude is a question of law that we review de novo.
Olivas-Motta v. Holder, 746 F.3d 907, 908 (9th Cir. 2013).
Because Almanza-Arenas filed his application for relief on
January 18, 2006, the Real ID Act and our cases that address
that Act apply. See Real ID Act of 2005, Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 302 (codified in scattered sections
of 8 U.S.C.) (Provisions of the REAL ID Act apply to
“applications for . . . relief from removal made on or after”
May 11, 2005.). The REAL ID Act places the burden on the
applicant to show eligibility for cancellation of removal.

    4
    The BIA also concluded that Almanza-Arenas was ineligible for the
petty offense exception that may render an alien eligible for cancellation
of removal even if he has a conviction for a crime involving moral
turpitude. Because we conclude that the BIA erred when it found that
Almanza-Arenas failed to meet his burden of proof to establish that he
was not convicted of a crime involving moral turpitude, we do not reach
this issue.
               ALMANZA-ARENAS V. HOLDER                       9

A. Almanza-Arenas’s State Statute of Conviction

    California Vehicle Code § 10851(a) criminalizes the act
of driving or taking a vehicle not one’s own, “with intent
either to permanently or temporarily deprive the owner
thereof” of title to or possession of her property. Hence, an
individual may be convicted under the statute whether he
takes a vehicle temporarily or permanently. People v. Allen,
984 P.2d 486, 490 (Cal. 1999)

B. The Categorical Approach

    To determine whether a past conviction qualifies as a
generic offense, such as a generic offense described in an
immigration statute, courts use the categorical approach:
“They compare the elements of the statute forming the basis
of the defendant’s conviction with the elements of the
‘generic’ crime.” Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). “The prior conviction qualifies as [the
generic offense] only if the statute’s elements are the same as,
or narrower than, those of the generic offense.” Id.

     Here, we compare whether a conviction under California
Vehicle Code § 10851(a) categorically qualifies as the
generic offense of a crime involving moral turpitude. This
court acknowledged that the BIA has held that § 10851 “is a
categorical theft offense even though, in some circumstances,
it criminalizes taking a vehicle temporarily, as distinct from
permanently.” Duenas-Alvarez v. Holder, 733 F.3d 812, 815
(9th Cir. 2013) (citing In re V-Z-S, 22 I. & N. Dec. 1338
(B.I.A. 2000) (en banc)). But “a theft offense is not
categorically a crime of moral turpitude if the statute of
conviction is broad enough to criminalize a taking with intent
10            ALMANZA-ARENAS V. HOLDER

to deprive the owner of his property only temporarily.”
Castillo-Cruz, 581 F.3d at 1159.

    Almanza-Arenas’s statute of conviction proscribes both
conduct that does not amount to a crime of moral turpitude
(temporary taking) and conduct that would constitute a crime
of moral turpitude (permanent taking). The elements of his
statute of conviction are neither “the same as, or narrower
than, those of the generic offense.” Descamps, 133 S. Ct. at
2281. Thus, his conviction under California Vehicle Code
§ 10851(a) is not categorically a crime of moral turpitude.

    In Descamps, the Court analyzed California Penal Code
§ 459, which provides that a “person who enters” certain
locations “with intent to commit grand or petit larceny or any
felony is guilty of burglary.” Id. at 2282. At issue was
whether a conviction under California Penal Code § 459
qualified as a generic burglary (and so as a “violent felony”)
under the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Generic burglary required that an entry be “unlawful,” but
§ 459 did not. Descamps, 133 S. Ct. at 2285. The Court
found that a conviction under § 459 did not qualify as a
generic burglary “because California, to get a conviction,
need not prove” an essential element of the generic offense:
unlawful entry. Id. at 2285-86.

    California Vehicle Code § 10851(a) is, in significant
ways, analogous to California Penal Code § 459. To secure
a conviction under California Vehicle Code § 10851(a), the
state need not prove that a defendant permanently took a
vehicle. Yet only a permanent taking is a crime of moral
turpitude. See Castillo-Cruz, 581 F.3d at 1159. In that
respect, just as in Descamps, “California, to get a conviction
[under § 10851(a)] need not prove” an essential element of
               ALMANZA-ARENAS V. HOLDER                      11

the generic offense: a permanent taking. Descamps, 133 S.
Ct. at 2285-86. The statute is thus overbroad in the same
manner as California Penal Code § 459, because it
“criminalizes a broader swath of conduct than the relevant
generic offense” by criminalizing temporary as well as
permanent takings. Id. at 2285.

    Because “[Almanza-Arenas’s] crime of conviction . . .
does not correspond to the relevant generic offense,” our
analysis under the categorical approach ends here. Id. at
2286. We may only proceed to apply the modified
categorical approach if we find that California Vehicle Code
§ 10851(a) is a divisible statute.

C. The Modified Categorical Approach

   C.1     The Modified Categorical Approach is Not
           Applicable Because California Vehicle Code
           § 10851(a) is Not Divisible

    Courts may apply the modified categorical approach only
to divisible statutes. Id. at 2282. A statute is divisible where
it “sets out one or more elements of the offense in the
alternative,” id. at 2281, effectively creating “several
different . . . crimes.” Id. at 2285 (quoting Nijhawan v.
Holder, 557 U.S. 29, 41 (2009)). The difference between
indivisible and divisible statutes is that “indivisible statutes
may contain multiple, alternative means of committing the
crime, [but] only divisible statutes contain multiple,
alternative elements of functionally separate crimes.” Rendon
v. Holder, 764 F.3d 1077, 1084–85 (9th Cir. 2014) (emphasis
in original). A “jury faced with a divisible statute must
unanimously agree on the particular offense of which the
petitioner has been convicted (and thus, the alternative
12             ALMANZA-ARENAS V. HOLDER

element)”, however, when presented with an indivisible
statute the jury need not agree on which of the alternative
means the petitioner used to commit the offense. Id. at 1085.

     California Vehicle Code § 10851(a) uses “either . . . or”
language to discuss the element at issue: it states that a person
who drives or takes a vehicle not his own “with intent either
to permanently or temporarily deprive the owner thereof” is
guilty of the offense. Section 10851(a), however, does not
list “alternative elements” that effectively create several
different crimes, as Descamps and Nijhawan require of a
divisible statute. See Descamps, 133 S. Ct. at 2285. Instead,
the statute requires a defendant to have the minimum intent
to deprive an owner of her vehicle for some period of time,
but not necessarily permanently. The language in § 10851(a)
does not create “different crimes,” but rather establishes a
threshold for the intent element—that is, a taking of a vehicle
that is at least temporary, but could also be permanent.
Section 10851(a) provides alternative means by which the
offense may be committed, not alternative elements. In other
words, § 10851(a) is an indivisible statute because it
“describes a single crime that can be committed in a variety
of ways depending on the intent of the actor.” People v.
Llamas, 51 Cal. App. 4th 1729, 1740 (1997).

    The jury instructions for § 10851 also demonstrate the
statute’s indivisibility. The jury need not agree on how long
the actor intended to deprive a vehicle owner of possession of
her vehicle; instead the jury need only agree that “the
defendant . . . intended to deprive the owner of possession or
ownership of the vehicle for any period of time.” Judicial
Council Of California Criminal Jury Instruction 1820.
               ALMANZA-ARENAS V. HOLDER                     13

    We thus hold that California Vehicle Code § 10851(a) is
indivisible for the purposes of determining whether a
conviction under § 10851(a) is a crime of moral turpitude.
Descamps prohibits us from applying the modified
categorical approach to an indivisible statute like § 10851(a).
See Descamps, 133 S. Ct. at 2282. The BIA thus erred by
applying the modified categorical approach to examine
Almanza-Arenas’s record of conviction.

   C.2     The BIA Erred in its Application of the
           Modified Categorical Approach

    The BIA also erred in its application of the modified
categorical approach. To demonstrate and correct this error,
we continue in our analysis under the assumption that the
statute is divisible and that it was permissible for the BIA to
engage in a modified categorical approach to examine
Almanza-Arenas’s record of conviction.

    Where the petitioner was convicted under a divisible
statute, we apply the modified categorical approach to
determine “which alternative element in a divisible statute
formed the basis of the defendant’s conviction.” Descamps,
133 S. Ct. at 2293. This inquiry is legal, not factual, because
“the [Immigration and Nationality Act] asks what offense the
noncitizen was ‘convicted’ of, . . . not what acts he
committed.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1685
(2013) (internal citations omitted).

    Under the modified categorical approach, “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 record
14            ALMANZA-ARENAS V. HOLDER

of the factual basis for the plea.” Id. at 1684 (internal
quotations omitted).      If the record of conviction is
inconclusive, then the conviction did not “‘necessarily’
involve facts that correspond” to a disqualifying offense, and
the noncitizen “was not convicted of a[] [disqualifying
offense]” as a matter of law. Id. at 1687. Any ambiguity is
“construed in the noncitizen’s favor.” Id. at 1693.

    Here, the complaint, plea agreement, judgment, and
abstract of judgment were all part of the record before the
BIA. All of these documents are ambiguous as to whether
Almanza-Arenas was convicted of either permanently or
temporarily taking a vehicle. The complaint charges him
with “either permanently or temporarily” depriving the lawful
vehicle owner of their property under California Vehicle
Code § 10851(a); the plea agreement indicates a nolo plea
under People v. West to one count of violating § 10851 “per
17(b),” evidently a reference to the misdemeanor offenses
section of the California Penal Code; and the judgment
indicates only that Almanza-Arenas was convicted of a
misdemeanor violation of § 10851(a) and sentenced to
twenty-four days in custody, minus time served. The record
is thus inconclusive as to whether Almanza-Arenas was
convicted of temporarily or permanently taking a vehicle.
Because he may have been convicted of a temporary taking,
but only a permanent taking is a crime involving moral
turpitude, we are unable to determine whether Almanza-
Arenas was convicted of a crime involving moral turpitude.
               ALMANZA-ARENAS V. HOLDER                     15

D. An Inconclusive Record of Conviction Does Not
   Render an Alien Ineligible for Cancellation of
   Removal

    Almanza-Arenas’s record of conviction did not
conclusively show whether or not he was convicted of a
crime involving moral turpitude. The BIA not only engaged
in the modified categorical approach impermissibly, but also
determined that, where the record of conviction was
inconclusive, the petitioner was ineligible for cancellation of
removal. This was in error. In Moncrieffe, the Supreme
Court held that “[b]ecause we examine what the state
conviction necessarily involved, not the facts underlying the
case, we must presume that the conviction rested upon
nothing more than the least of the acts criminalized, and then
determine whether even those acts are encompassed by the
generic federal offense.” 133 S.Ct. at 1684 (internal
quotations omitted). Because the record is inconclusive as to
whether Almanza-Arenas was convicted for intending to
permanently or temporarily take a vehicle we must presume
that he was convicted for joyriding, which is not a crime of
moral turpitude.

    In Moncrieffe, the Supreme Court stressed that “to qualify
as an aggravated felony, a conviction for the predicate offense
must necessarily establish” all the elements of a generic
aggravated felony. Moncrieffe, 133 S. Ct. at 1687 (emphasis
added). Applying the modified categorical approach, the
Supreme Court was able to determine that Moncrieffe had
been convicted of possession of marijuana with intent to
distribute. See id. at 1685. Beyond that, Moncrieffe’s record
of conviction was ambiguous: the Supreme Court could not
determine whether Moncrieffe’s conviction otherwise
satisfied the elements of a generic aggravated felony. See id.
16             ALMANZA-ARENAS V. HOLDER

at 1686–87. This ambiguity, however, did not mean that
Moncrieffe had failed to meet his supposed burden “to show
that prior convictions do not constitute aggravated felonies.”
Contra Young, 697 F.3d at 989. On the contrary,
“[a]mbiguity on this point means that the conviction did not
‘necessarily’ involve facts that correspond to” a generic
aggravated felony. Moncrieffe, 133 S. Ct. at 1687. Because
Moncrieffe’s record of conviction did not establish that
Moncrieffe had necessarily been convicted of all the elements
of an aggravated felony, “Moncrieffe was not convicted of an
aggravated felony.” Id.

    Our circuit precedent in Young v. Holder is clearly
irreconcilable with Moncrieffe. In Young, we held that “[a]
petitioner cannot carry the burden of demonstrating eligibility
for cancellation of removal by establishing an inconclusive
record of conviction.” 697 F.3d 976, 990 (9th Cir. 2012) (en
banc). Under Young, a petitioner like Almanza-Arenas would
not be eligible for cancellation of removal because there is
ambiguity as to whether he was convicted of a crime
involving moral turpitude. According to Moncrieffe,
however, this same ambiguity makes Almanza-Arenas
eligible for cancellation of removal.

    Other aspects of the Supreme Court’s reasoning
underscore the fact that Young is irreconcilable with
Moncrieffe. The Supreme Court stressed that, under the
modified categorical approach, “[o]ur analysis is the same in
both” the context of deportability and the context of relief
from removal. Id. at 1685 n.4. Thus, Young cannot be
correct that the significance of an inconclusive record of
conviction depends on the allocation of the burden of proof,
see Young, 697 F.3d at 989: the Government bears the
burden of proving deportability, but noncitizens bear the
              ALMANZA-ARENAS V. HOLDER                     17

burden of proving eligibility for relief from removal. See
8 U.S.C. § 1229a(c)(3); 8 U.S.C. § 1229a(c)(4). Indeed, the
Supreme Court expressly refused to require noncitizens to
prove that they had not been convicted of an aggravated
felony. Moncrieffe, 133 S. Ct. at 1690 (rejecting the
Government’s suggestion that “[n]oncitizens should be given
an opportunity during immigration proceedings to
demonstrate that their predicate marijuana distribution
convictions involved only a small amount of marijuana and
no remuneration”). In so doing, the Supreme Court stressed
that courts applying the modified categorical approach must
“err on the side of underinclusiveness because ambiguity in
criminal statutes referenced by the [Immigration and
Nationality Act] must be construed in the noncitizen’s favor.”
Id. at 1693.

    Although a three judge panel may generally not overrule
a prior decision of this court, this is not so where the prior
decision has been “undercut by higher authority to such an
extent that it has been effectively overruled.” Miller v.
Gammie, 335 F.3d 889, 899 (9th Cir. 2003). In Moncrieffe,
the Supreme Court held that an alien convicted under a state
statute whose elements are not “necessarily” the same as the
generic federal disqualifying offense remains eligible for
cancellation of removal. 133 S. Ct. at 1684. Moncrieffe
overrules Young’s holding that to be eligible for cancellation
of removal, an alien must conclusively show that his
conviction did not include the elements of the federal
disqualifying offense. Young, 697 F.3d at 990.

   The generic offense at issue in Moncrieffe is an
aggravated felony, whereas in the matter before us, the
generic offense is a crime involving moral turpitude. But
“[w]hen a three-judge panel is deciding whether prior case
18            ALMANZA-ARENAS V. HOLDER

law has been overruled, the issues decided by the higher court
need not be identical in order to be controlling.” Cardenas-
Delgado v. Holder, 720 F.3d 1111, 1119 (9th Cir. 2013)
(internal quotations omitted). Here, Moncrieffe controls
because the procedures to determine whether a conviction is
for a crime involving moral turpitude or an aggravated felony
are identical. See Olivas-Motta, 746 F.3d at 911 (“There is
nothing in the substantive definition of a [crime involving
moral turpitude], in either the BIA’s definitions or the
Attorney General’s distillation, that permits an IJ to use a
different procedure than it uses for other crimes in
determining whether an alien has been convicted of such a
crime.”).

    Moncrieffe explains that its holding “is not without
qualification.” 133 S. Ct. at 1684. For divisible statutes, “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 record
of the factual basis for the plea.” Id. (citing Nijhawan,
557 U.S. at 35) (quoting Shepard v. U.S., 544 U.S. 13, 26
(2005) (internal quotation marks omitted). Moreover,
Moncrieffe does not hold that an alien with an inconclusive
record of conviction will necessarily avoid deportation.
Rather, the alien avoids mandatory removal and “may seek
relief from removal such as asylum or cancellation of
removal.” Id. at 1692. Moncrieffe’s holding allows us to
avoid the unfortunate situation where “two noncitizens, each
‘convicted of’ the same offense, might obtain different”
readings of their ambiguous prior conviction “depending on
what evidence remains available or how it is perceived by an
individual [IJ].” Id. at 1690.
               ALMANZA-ARENAS V. HOLDER                     19

    Thus, where an alien is convicted under a divisible
criminal statute, and may have been convicted of a lesser
crime that did not include an element of moral turpitude, “we
err on the side of underinclusiveness” by not disqualifying the
alien from cancellation of removal, “because ambiguity in
criminal statutes referenced by the INA must be construed in
the noncitizen’s favor.” Id. at 1693.

                      CONCLUSION

  The petition is hereby GRANTED, and this matter is
REMANDED to the BIA for further proceedings.



FISHER, Circuit Judge, concurring in part and concurring in
the result:

    Because California Vehicle Code § 10851(a) is not
divisible, it is unnecessary in this case to apply the modified
categorical approach and decide whether our en banc decision
in Young v. Holder, 697 F.3d 976 (9th Cir. 2012), has been
abrogated in part by Moncrieffe v. Holder, 133 S. Ct. 1678
(2013). Therefore, I do not join in parts C.2 and D of the
majority’s opinion. I otherwise join in the majority opinion
and concur in the result.
