                  FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


ARACELY MARINELARENA,                      No. 14-72003
                    Petitioner,
                                            Agency No.
                  v.                       A095-731-273

WILLIAM P. BARR, Attorney                    OPINION
General,
                      Respondent.


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

   Argued and Submitted En Banc September 27, 2018
                 Pasadena, California

                    Filed July 18, 2019

 Before: Sidney R. Thomas, Chief Judge, and A. Wallace
Tashima, Susan P. Graber, William A. Fletcher, Marsha S.
  Berzon, Johnnie B. Rawlinson, Jay S. Bybee, Milan D.
Smith, Jr., Sandra S. Ikuta, Paul J. Watford and Michelle T.
                 Friedland, Circuit Judges.

                Opinion by Judge Tashima;
                 Dissent by Judge Ikuta
2                  MARINELARENA V. SESSIONS

                            SUMMARY*


                            Immigration

    Granting Aracely Marinelarena’s petition for review,
reversing a decision of the Board of Immigration Appeals,
and remanding, the en banc court overruled Young v. Holder,
697 F.3d 976 (9th Cir. 2012) (en banc), and held that, in the
context of eligibility for cancellation of removal, a
petitioner’s state-law conviction does not bar relief where the
record is ambiguous as to whether the conviction constitutes
a disqualifying predicate offense.

    Marinelarena was charged with conspiracy to commit a
felony in violation of California Penal Code § 182(a)(1),
namely conspiring to sell and transport a controlled substance
in violation of California Health and Safety Code § 11352.
The complaint listed a number of overt acts in support, only
one of which referenced a specific controlled substance,
heroin. Upon a guilty plea, Marinelarena was convicted of
violating § 182(a)(1).

    In removal proceedings, Marinelarena argued that her
conviction did not constitute a controlled substance offense
that barred cancellation of removal because her record of
conviction did not identify that the conviction rested on a
specific controlled substance. However, the BIA concluded
that Marinelarena had the burden of establishing that her
conviction was not a disqualifying offense, and that she had
not met that burden.

    *
      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

   In determining whether Marinelarena’s conviction
constituted a predicate offense for immigration purposes, the
en banc court applied the three-step process derived from
Taylor v. United States, 495 U.S. 575 (1990).

    First, the en banc court held that the conspiracy statute
under which Marinelarena was convicted was not a
categorical match to the relevant federal controlled substance
offense because a defendant could be convicted under
California Penal Code § 182(a)(1) for any criminal
conspiracy, whether or not it relates to a controlled substance
offense.

    Second, the en banc court assumed that § 182(a)(1) is
divisible both as to the predicate crime underlying the
conspiracy (here, § 11352) and as to the controlled substance
element of § 11352, explaining that the issue of divisibility
made no difference to the outcome of the case.

    Third, the en banc court applied the modified categorical
approach, in which the court examines judicially noticeable
documents of conviction – known as Shepard documents
after Shepard v. United States, 544 U.S. 13 (2005) – to
determine whether a petitioner was “necessarily” convicted
of a state crime with the same basic elements as the relevant
generic federal crime. In doing so, the en banc court
concluded that Marinelarena’s record of conviction was
ambiguous because her guilty plea could have rested on an
overt act that did not relate to heroin and, therefore, the en
banc court could not assume her conviction was predicated on
an act involving a federally controlled substance.

   In Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en
banc), this court previously held that when a record of
4              MARINELARENA V. SESSIONS

conviction is ambiguous after analyzing the Shepard
documents, a petitioner is ineligible for cancellation because
she has not met her burden of showing that she was not
convicted of a disqualifying offense. However, the en banc
court overruled Young, holding that it was incompatible with
the Supreme Court’s subsequent decision in Moncrieffe v.
Holder, 569 U.S. 184 (2013). In so concluding, the en banc
court explained that Moncrieffe held that, if a record of
conviction does not conclusively establish that a petitioner
was convicted of the elements of a generic offense, then she
was not convicted of the offense for immigration purposes.

    The en banc court also explained that the fact Moncrieffe
involved the question of whether the petitioner was
removable, not whether the petitioner was eligible for
cancellation of removal, did not change the analysis,
observing that the Supreme Court explicitly explained in
Moncrieffe that the categorical analysis is the same in both
the removal and cancellation of removal contexts. However,
the government had argued that Moncrieffe’s analysis does
not extend to cancellation of removal because the government
bears the burden in the removal context, while the petitioner
bears the burden in the cancellation of removal context. The
en banc court rejected that argument, explaining that the key
question here addressed a question of law: What do the
uncontested documents in the record establish about the
elements of the crime of conviction with the requisite
certainty? The en banc court concluded that this legal query
required no factual finding and was therefore unaffected by
statutory burdens of proof.

     The en banc court noted that the predicate factual
question that would be relevant to this analysis was whether
all relevant and available documents had been produced, but
                MARINELARENA V. SESSIONS                       5

the en banc court explained that this question implicated a
possible burden of production, not the burden of proof.
Because the BIA did not address whether all the relevant
documents had been produced, the en banc court remanded to
the BIA to consider in the first instance the placement and
scope of the burden of production for Shepard documents as
it applies in cancellation of removal.

    Finally, because the en banc court panel held that
Marinelarena’s conviction was not a controlled substance
offense barring cancellation of removal, the en banc court
concluded it need not reach the issue of the effect of the
expungement of Marinelarena’s conviction.

     Dissenting, Judge Ikuta, joined by Judges Graber and
Rawlinson, wrote that the majority confused the relevant
legal and factual issues, thereby creating a new rule that,
when an alien has a prior conviction under a state statute that
includes multiple, alternative versions of the offense, and
there is insufficient evidence in the record to prove which of
those alternative versions the alien was convicted of, the court
must assume as a matter of law that the alien’s conviction did
not match the federal generic offense. Judge Ikuta wrote that
the majority’s new rule: (1) finds no support in Moncrieffe;
(2) is contrary to Young, which Judge Ikuta explained was not
overruled by Moncrieffe because the cases address entirely
distinct issues; (3) conflicts with the majority of sister
circuits; (4) is contrary to the Immigration & Nationality Act
in that the majority’s new rule overrides the statute and
regulation that put the burden on the alien to establish
eligibility for relief; and (5) will encourage aliens to withhold
and conceal evidence.
6             MARINELARENA V. SESSIONS

                       COUNSEL

Brian P. Goldman (argued), Orrick Herrington & Sutcliffe
LLP, San Francisco, California; Benjamin P. Chagnon,
Thomas M. Bondy, and Robert M. Loeb, Orrick Herrington
& Sutcliffe LLP, Washington, D.C.; Andrew Knapp,
Southwestern Law School, Los Angeles, California; for
Petitioner.

Tim Ramnitz (argued), Attorney; Patrick J. Glen, Senior
Litigation Counsel; John W. Blakeley, Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.

Jayashri Srikantiah and Jennifer Stark, Immigrants’ Rights
Clinic, Mills Legal Clinic, Stanford Law School, Stanford,
California; Andrew Wachtenheim and Manuel Vargas,
Immigrant Defense Project, New York, New York; 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.
                MARINELARENA V. SESSIONS                     7

Sarah L. Rosenbluth and Christopher G. Clark, Boston,
Massachusetts; Philip L. Torrey, Managing Attorney,
Harvard Immigration and Refugee Clinical Program,
Cambridge, Massachusetts; Jason A Cade, Athens, Georgia;
Carrie L. Rosenbaum, San Francisco, California; for Amici
Curiae Immigration Law Professors.


                         OPINION

TASHIMA, Circuit Judge:

    We must decide whether, in the context of eligibility for
cancellation of removal under 8 U.S.C. § 1229b(b), a record
that is ambiguous as to whether a state law conviction
constitutes a predicate offense that would bar a petitioner
from relief actually does bar relief. We hold that it does not.

    Petitioner Aracely Marinelarena (“Marinelarena”), a
noncitizen who last entered the United States in 2000,
conceded that she was removable, but petitioned for
cancellation of removal under 8 U.S.C. § 1229b(b). The
immigration judge (“IJ”) denied her relief, and the Board of
Immigration Appeals (“BIA”) affirmed, holding that
Marinelarena had failed to demonstrate that her prior
conviction was not for a disqualifying federal offense and,
therefore, had not met her burden of showing that she was
eligible for cancellation of removal. Marinelarena petitioned
for review of the BIA’s final decision. We grant her petition,
reverse the BIA’s determination, and remand to the agency.

    We hold that the statute under which Marinelarena was
convicted was overbroad at the time of her conviction. We
further hold, overruling our previous decision in Young v.
8                   MARINELARENA V. SESSIONS

Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), that, under
Moncrieffe v. Holder, 569 U.S. 184 (2013), an ambiguous
record of conviction does not demonstrate that a petitioner
was convicted of a disqualifying federal offense. We do not
reach the issue of whether there is a separate burden of
production in the cancellation of removal context and, if so,
who bears it, and remand to the BIA to consider this issue in
the first instance.

          FACTUAL AND PROCEDURAL BACKGROUND

    Marinelarena, a native and citizen of Mexico, first entered
the United States in 1992. After living in the United States
for a number of years, she returned to Mexico briefly in 1999,
but re-entered the United States in 2000 following inspection
and admission. Marinelarena has lived in the United States
since and has two children who are United States citizens.

    In 2000, on a plea of nolo contendere, Marinelarena was
convicted of a misdemeanor under California Penal Code
§ 529 for false personation of another. In 2006, she was
charged with one count of conspiracy to commit a felony in
violation of California Penal Code § 182(a)(1),1 namely
conspiring to sell and transport a controlled substance in
violation of California Health and Safety Code § 11352.2 The


    1
      California Penal Code § 182(a)(1) applies when “two or more
persons conspire: (1) To commit any crime.”
    2
        California Health and Safety Code § 11352 provides:

           (a) Except as otherwise provided in this division, every
           person who transports, imports into this state, sells,
           furnishes, administers, or gives away, or offers to
           transport, import into this state, sell, furnish,
                 MARINELARENA V. SESSIONS                             9

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. She
was fined, sentenced to three years of probation, and 136 days
in county jail. Following her conviction, Marinelarena filed
separate petitions in state court under California Penal Code
§ 1203.4 to expunge her false personation and conspiracy
convictions. In 2009, California courts granted both of
Marinelarena’s petitions, vacating her § 529 and § 182(a)(1)
convictions.

    Meanwhile, on March 28, 2007, following her conspiracy
conviction, the Department of Homeland Security served
Marinelarena with a notice to appear for removal
proceedings. The notice charged her with removability as an
alien who had remained in the United States longer than
permitted, in violation of 8 U.S.C. § 1227(a)(1)(B).
Marinelarena conceded removability, but applied for
cancellation of removal under 8 U.S.C. § 1229b(b).



       administer, or give away, or attempts to import into this
       state or transport (1) any controlled substance specified
       in subdivision (b), (c), or (e), or paragraph (1) of
       subdivision (f) of Section 11054, specified in paragraph
       (14), (15), or (20) of subdivision (d) of Section 11054,
       or specified in subdivision (b) or (c) of Section 11055,
       or specified in subdivision (h) of Section 11056, or
       (2) any controlled substance classified in Schedule III,
       IV, or V which is a narcotic drug, unless upon the
       written prescription of a physician, dentist, podiatrist,
       or veterinarian licensed to practice in this state, shall be
       punished by imprisonment pursuant to subdivision (h)
       of Section 1170 of the Penal Code for three, four, or
       five years.
10             MARINELARENA V. SESSIONS

    At a removal hearing in 2011, the IJ noted that
Marinelarena’s conspiracy conviction had been expunged
under California Penal Code § 1203.4, but stated that such an
expungement would not eliminate the conviction for
immigration purposes, unless the dismissal had been on
constitutional grounds. The IJ continued the hearing,
instructing Marinelarena to submit any documents or briefing
as to why she remained eligible. Accordingly, she submitted
a brief arguing that she remained eligible for cancellation of
removal despite her § 182(a)(1) conviction. She argued that,
because the conviction documents in the record did not
identify that the crime of conviction rested on a specific
controlled substance, her conviction did not constitute a
controlled substance offense as defined by the Controlled
Substances Act (“CSA”), 21 U.S.C. § 802.

    The IJ rendered an oral decision in 2012, holding that
Marinelarena had failed to demonstrate eligibility for
cancellation of removal and ordering her removed to Mexico.
The IJ determined that although her conviction under § 529
for false personation had been expunged, that expungement
did not disqualify it for immigration purposes and the
conviction constituted a crime involving moral turpitude
under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ also found that,
“more importantly,” her crime “for conspiracy to distribute
heroin”—as the IJ construed the criminal complaint—would
also bar her from relief. Consequently, the IJ denied her
relief.

    On appeal, the BIA also held that Marinelarena had the
burden of establishing that her conspiracy conviction was not
a disqualifying offense, and that she had not met that burden.
The BIA explained that California Health and Safety Code
§ 11352 is broader than the CSA with respect to the
                   MARINELARENA V. SESSIONS                              11

substances covered, 21 U.S.C. § 802, but divisible, and that
Marinelarena had failed to submit any evidence showing that
she was not convicted of a disqualifying controlled substance
offense. Therefore, the BIA ruled, Marinelarena had not
established that she was eligible for cancellation of removal.
The BIA did not discuss her conviction under California
Penal Code § 529, nor did it discuss the expungement of
either conviction.

    Marinelarena timely petitioned for review. A three-judge
panel, in a split decision, denied in part and dismissed in part
the petition. Marinelarena v. Sessions, 869 F.3d 780, 792
(9th Cir. 2017). We then granted rehearing en banc.
Marinelarena v. Sessions, 886 F.3d 737 (9th Cir. 2018).3

                       STANDARD OF REVIEW

   We review questions of law de novo. Coronado v.
Holder, 759 F.3d 977, 982 (9th Cir. 2014).

                              DISCUSSION

I. Conviction for a Controlled Substance Offense

   To be eligible for cancellation of removal under 8 U.S.C.
§ 1229b(b), Marinelarena must meet four requirements,4

    3
      The order granting rehearing en banc effectively vacated the three-
judge panel opinion. Id. (“The three-judge panel opinion shall not be cited
as precedent by or to any court of the Ninth Circuit.”).
    4
       To be eligible for cancellation of removal, a petitioner must show
that: (A) she “has been physically present in the United States” for at least
ten years; (B) she “has been a person of good moral character during such
period”; (C) she “has not been convicted of an offense under section
12                MARINELARENA V. SESSIONS

including, as relevant here, that she has not been convicted of
a “controlled substance” offense, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Thus, the central question on appeal
is 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).

    In order to determine whether a state conviction
constitutes a predicate offense for immigration purposes, this
court employs the now-familiar three-step process derived
from Taylor v. United States, 495 U.S. 575 (1990). See
Medina-Lara v. Holder, 771 F.3d 1106, 1111–12 (9th Cir.
2014). “First, we ask whether the state law is a categorical
match with a federal [controlled substance] offense[,] . . .
look[ing] only to the ‘statutory definitions’ of the
corresponding offenses.” United States v. Martinez-Lopez,
864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (quoting
Taylor, 495 U.S. at 600), cert. denied, 138 S. Ct. 523 (2017).
“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.” Id. (quoting
United States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir.
2014) (per curiam)); see also Descamps v. United States,
570 U.S. 254, 257 (2013) (holding that a state offense and a
federal offense are a categorical match if “the [state] statute’s
elements are the same as, or narrower than, those of the
generic [federal] offense”).



1182(a)(2), 1227(a)(2), or 1227(a)(3)”; and (D) “removal would result in
exceptional and extremely unusual hardship” to her family members who
are United States citizens, in this case her two children. 8 U.S.C.
§ 1229b(b)(1)(A)–(D).
                MARINELARENA V. SESSIONS                     13

    If not—i.e., if the state statute criminalizes a broader
range of conduct than does the federal offense—we continue
to the second step: asking whether the statute of conviction
is “divisible.” Id. A state offense is “divisible” if it has
“‘multiple, alternative elements, and so effectively creates
several different crimes.’” Almanza-Arenas v. Lynch,
815 F.3d 469, 476 (9th Cir. 2016) (en banc) (quoting
Descamps, 570 U.S. at 264). “Alternatively, if [the offense]
has a ‘single, indivisible set of elements’ with different means
of committing one crime, then it is indivisible and we end our
inquiry, concluding that there is no categorical match.” Id. at
476–77 (quoting Descamps, 570 U.S. at 265).

    If the statute is both overbroad and divisible, we continue
to the third step and apply the “modified categorical
approach.” Martinez-Lopez, 864 F.3d at 1039. “At this step,
we examine judicially noticeable documents of conviction ‘to
determine which statutory phrase was the basis for the
conviction.’” Id. (quoting Descamps, 570 U.S. at 263).
When doing so, we can consider only a restricted set of
materials, including “the charging document, the terms of a
plea agreement,” the “transcript of [the plea] colloquy,” and
“comparable judicial record[s].” Shepard v. United States,
544 U.S. 13, 26 (2005) (plurality opinion); see also Lopez-
Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015). In
examining these documents, our focus 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. Descamps,
570 U.S. at 260–61, 263.

    We agree with Marinelarena that California Penal Code
§ 182(a)(1) is overbroad, and we assume for purposes of this
14              MARINELARENA V. SESSIONS

appeal that it is divisible. Therefore, we apply the modified
categorical approach.

     A. Categorical Approach

    First, we consider whether Marinelarena’s conspiracy
conviction is 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.
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 textually similar to
California 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”), abrogated on other grounds by Mathis v. United
States, 136 S. Ct. 2243, 2251 (2016).

     B. Divisibility

    Having determined that § 182(a)(1) is not a categorical
match, we normally next turn to the question of divisibility.
However, for our purposes, it is sufficient to assume that
§ 182(a)(1) is divisible both as to the predicate crime
underlying the conspiracy (here, § 11352) and as to the
controlled substance element of § 11352, for, as explained
below, it would make no difference in the outcome of this
case if it were not.
                MARINELARENA V. SESSIONS                     15

    C. Modified Categorical Approach

        1. Analyzing the Shepard Documents

    We proceed to step three, the modified categorical
approach, and “examine judicially noticeable documents of
conviction” to determine the basis for petitioner’s conviction.
Martinez-Lopez, 864 F.3d at 1039. Here, 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 identifies 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 (quoting United States v. Corona-
Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002))), and the
record contains no plea agreement, plea colloquy, or
judgment to establish the elements on which Marinelarena’s
conviction under § 182(a)(1) rested.

     Therefore, even though heroin is a controlled substance
under federal law, see 21 U.S.C. § 802(6) (defining
“controlled substance” by reference to statutory schedules,
including Schedule I); 21 U.S.C. § 812, Schedule I (b)(10)
(listing heroin on Schedule I), 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
16                MARINELARENA V. SESSIONS

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.

    Here, the BIA found that, considering the complaint,
Marinelarena had failed to carry her burden of establishing
that she was not convicted of a disqualifying controlled
substance offense. Previously, we had held that when the
record of conviction is ambiguous after analyzing the
Shepard documents, a petitioner is ineligible for cancellation
of removal because she has not met her burden of showing
that she was not convicted of a disqualifying federal offense.5
See Young, 697 F.3d at 990. Subsequent Supreme Court
decisions, however, have brought into question the
foundation of this conclusion. See Moncrieffe v. Holder,
569 U.S. 184, 189–90 (2013); Descamps, 570 U.S. at 263–64.
We therefore granted rehearing en banc to reconsider our
earlier decision.

         2. Ambiguous Record of Conviction

    In Young, we held en banc that a petitioner cannot
establish her eligibility for cancellation of removal by
showing that the record of conviction is inconclusive as to
whether she was convicted of a disqualifying offense.
697 F.3d at 988–89. Thus, under Young, Marinelarena must
prove that she was not convicted of a controlled substance



     5
      This presumption, that the burden rested on the petitioner, may be
why the BIA did not inquire as to whether other Shepard documents were
available to clarify Marinelarena’s record of conviction.
                   MARINELARENA V. SESSIONS                             17

offense in order to establish her eligibility for cancellation of
removal.

    Marinelarena contends, however, that Young is
incompatible with the Supreme Court’s subsequent decision
in Moncrieffe. We agree, and so hold. Under Moncrieffe,
ambiguity in the record as to a petitioner’s offense of
conviction means that the petitioner has not been convicted
of an offense disqualifying her from relief.6




    6
      The Circuits are split on this issue. The First Circuit reached the
same conclusion as we do in Sauceda v. Lynch, 819 F.3d 526, 533–34 (1st
Cir. 2016), holding that Moncrieffe dictates that an ambiguous record of
conviction does not demonstrate a disqualifying offense in both the
removal and cancellation of removal contexts. The Second Circuit has
reached a similar conclusion, though prior to Moncrieffe. See Martinez v.
Mukasey, 551 F.3d 113, 122 (2d Cir. 2008) (holding that the BIA “erred
by placing the burden on [the petitioner] to show that his conduct was the
equivalent of a federal misdemeanor”).

     The Tenth, Sixth, and Eighth Circuits, however, reached the opposite
conclusion, holding that Moncrieffe does not extend to cancellation of
removal. See Lucio-Rayos v. Sessions, 875 F.3d 573, 582 (10th Cir.
2017), cert. denied sub nom. Lucio-Rayos v. Whitaker, 139 S. Ct. 865
(2019); Gutierrez v. Sessions, 887 F.3d 770, 776 (6th Cir. 2018), cert.
denied sub nom. Gutierrez v. Whitaker, 139 S. Ct. 863 (2019); Pereida v.
Barr, 916 F.3d 1128, 1132–33 (8th Cir. 2019). But the Tenth Circuit’s
decision relied heavily on our panel majority opinion in Marinelarena,
which has now been effectively vacated, see footnote 3, supra, and the
Sixth Circuit’s rested on the same reasoning, see Lucio-Rayos, 875 F.3d
at 582–83; Gutierrez, 887 F.3d at 776–77. The Eighth Circuit’s decision,
considered the question in a single paragraph, citing to the Tenth Circuit’s
decision in Lucio-Reyes as support and without any consideration of the
potential effect of Moncrieffe. See Pereida, 916 F.3d at 1133. We decline
to follow the Tenth, Sixth, and Eighth Circuits for the reasons discussed
infra.
18                 MARINELARENA V. SESSIONS

    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 (“INA”).
569 U.S. at 191. 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. See Descamps, 570 U.S. at 260.
The Court in Moncrieffe reiterated 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, 569 U.S. at 190 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186 (2007)). “[A] state
offense is a categorical match with a generic federal offense
only if a conviction of the state offense ‘“necessarily”
involved . . . facts equating to [the] generic [federal
offense].’” Id. (alterations in original) (emphasis added)
(quoting Shepard, 544 U.S. at 24). “Whether the 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 in Moncrieffe further stated that, if a statute
contains multiple, alternative versions of a crime (that is, if


     The Seventh Circuit has nodded toward the issue in dicta, but has not
squarely addressed it, see Sanchez v. Holder, 757 F.3d 712, 720 n.6 (7th
Cir. 2014), and the question remains open in the Fifth Circuit. See Le v.
Lynch, 819 F.3d 98, 107 n.5 (5th Cir. 2016) (expressly reserving the
question); Gomez-Perez v. Lynch, 829 F.3d 323, 326 n.1 (5th Cir. 2016)
(noting the question remains open). Similarly, the Eleventh Circuit has
not reached a conclusion on this issue. See Francisco v. U.S. Attorney
Gen., 884 F.3d 1120, 1134 n.37 (11th Cir. 2018).
                MARINELARENA V. SESSIONS                     19

the statute is divisible), “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. at 191 (emphasis added) (quoting Nijhawan 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 192.

    Most important for this case is the Court’s response in
Moncrieffe to the government’s argument that the petitioner
had committed a “felony punishable under the [CSA],” which
qualifies as an aggravated felony that would allow the
petitioner to be deported. Id. at 188. The Court disagreed
with that argument. Id. at 190. 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 192 (emphasis added). The 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 194–95.
“Under the categorical approach, then, Moncrieffe was not
convicted of an aggravated felony” allowing him to be
deported. Id. at 195.

    This mode of analysis is clearly irreconcilable with
Young. Young holds that ambiguity in the record as to which
elements underlay the petitioner’s conviction means that, for
purposes of cancellation of removal, she has failed to prove
that she was not convicted of the disqualifying offense
20                 MARINELARENA V. SESSIONS

contained in a divisible statute. 697 F.3d at 988–89.
Moncrieffe holds the opposite: If the record does not
conclusively establish that the noncitizen was convicted of
the elements of the generic offense, then she was not
convicted of the offense for purposes of the immigration
statutes. 569 U.S. at 194–95.

    That Moncrieffe involved the question of whether the
petitioner was removable, not whether the petitioner was
eligible for cancellation of removal, does not change our
analysis. The Supreme Court explicitly explained in
Moncrieffe that the categorical “analysis is the same in both
[the removal and cancellation of removal] contexts.” Id. at
191 n.4 (emphasis added). Moreover, any such distinction
would have led to an exceedingly odd result in Moncrieffe
itself—Moncrieffe would have been not removable as an
aggravated felon, as the Court held, yet, based on the same
conviction, would be ineligible for asylum or cancellation of
removal, also alluded to in the opinion. Id. at 187.
Therefore, the question in both contexts is whether the
conviction “necessarily” involved elements that correspond
to a federal offense. Id. at 194.7

    The government argues that, despite the Supreme Court’s
statement to the contrary, Moncrieffe’s analysis does not
extend to the cancellation of removal context because the
statutory burdens of proof differ. In the removal context, the


     7
      As the First Circuit explained in Sauceda, “[t]his conclusion follows
from the fact that the underlying statutory language is the same in both”
the removability and cancellation of removability contexts. 819 F.3d at
534. Thus, “‘[c]onviction’ is ‘the relevant statutory hook,’” and has a
“formal, legal definition governed by the presumption explained [in
Moncrieffe].” Id. (quoting Moncrieffe, 569 U.S. at 191).
                MARINELARENA V. SESSIONS                     21

government bears the burden of “establishing by clear and
convincing evidence” that a noncitizen is deportable, 8 U.S.C.
§ 1229a(c)(3)(A). But, the government argues, the petitioner
bears the burden of demonstrating that she is eligible for
cancellation of removal under 8 U.S.C. § 1229a(c)(4). While
this may be true, that distinction has no bearing on the
conclusion reached in Moncrieffe, because the key question
in the categorical approach—like the modified categorical
approach—addresses a question of law: What do the
uncontested documents in the record establish about the
elements of the crime of conviction with the requisite
certainty? That legal query requires no factual finding and is
therefore unaffected by statutory “burdens of proof.”

    An analysis of Moncrieffe and subsequent Supreme Court
cases demonstrates that the categorical approach, and by
extension the modified categorical approach, poses a
fundamentally legal question. The categorical approach
involves an “abstract” inquiry, focused on whether a
petitioner was “necessarily” convicted of a disqualifying
offense. Moncrieffe, 569 U.S. at 190–91. The Supreme
Court has repeatedly explained that Congress intended to
limit the assessment “‘to a legal analysis of the statutory
offense,’ and to disallow ‘[examination] of the facts
underlying the crime.’” Mellouli v. Lynch, 135 S. Ct. 1980,
1986 (2015) (alteration in original) (quoting Alina Das, The
Immigration Penalties of Criminal Convictions: Resurrecting
Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev.
1669, 1688, 1690 (2011)). Thus, when applying the
categorical approach, “[a]n alien’s actual conduct is irrelevant
to the inquiry,” because we must “‘presume that the
conviction rested upon nothing more than the least of the acts
criminalized’ under the state statute.”          Id. (quoting
Moncrieffe, 569 U.S. at 190–91). Hence, the categorical
22              MARINELARENA V. SESSIONS

approach mandates a legal inquiry, not a determination of a
question of fact to which the burden of proof concept applies.

     The same reasoning pertains to the modified categorical
approach. The modified categorical approach is merely a
“version of [the categorical] approach,” Mellouli, 135 S. Ct.
at 1986 n.4, that “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.” Descamps, 570 U.S. at 260. Thus, using the
modified categorical approach, “a court may determine which
particular offense the noncitizen was convicted of by
examining” certain Shepard documents; “[o]ff limits to the
adjudicator, however, is any inquiry into the particular facts
of the case.” Mellouli, 135 S. Ct. at 1986 n.4 (emphasis
added); see also Descamps, 570 U.S. at 278 (“The modified
approach does not authorize a sentencing court to substitute
such a facts-based inquiry for an elements-based one.”).

    As a result, whether the record of conviction necessarily
established the elements of the disqualifying federal offense
“is a legal question with a yes or no answer.” Almanza-
Arenas, 815 F.3d at 489 (Watford, J., concurring). And, as a
pure question of law, it is unaffected by statutory burdens of
proof. See Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91,
114 (2011) (Breyer, J., concurring) (“[T]he evidentiary
standard of proof applies to questions of fact and not to
questions of law.”).

    The dissent contends that the Shepard inquiry is “factual”
in nature followed by a separate legal inquiry: “[i]f the court
can determine the version of the offense, the court then
proceeds to the legal inquiry.” Dissent Op. 43, 44. But the
                MARINELARENA V. SESSIONS                     23

Supreme Court has been clear that the Shepard inquiry is not
an “evidence-based one;” instead, determining the version of
the offense—the “elements-based inquiry”—is the legal
inquiry. Descamps, 570 U.S. at 266–67.

    To the extent that there may be a predicate factual
question, it would be whether all relevant and available
documents have been produced. But this question implicates
a possible burden of production, which we need not and do
not address here, not the burden of proof. Once all relevant
and available Shepard documents have been produced,
nothing remains inconclusive—the documents either show
that the petitioner was convicted of a disqualifying offense
under the categorical approach, or they do not. What the
documents show is thus a purely legal question, to which the
burden of proof is irrelevant.

    This conclusion does not in any respect “entirely negate”
the statutory burden of proof nor does it “presuppose
eligibility,” as the government argues. A petitioner still bears
the burden of proof for all factual inquiries; under 8 U.S.C.
§ 1229a(c)(4), Marinelarena still bears the burden of showing
that she has been physically present in the United States for
ten or more continuous years, has been a person of good
moral character, and that her citizen children would suffer
“exceptional and extremely unusual hardship” on her
removal, as those are questions of fact. 8 U.S.C.
§ 1229b(b)(1); see also Moncrieffe, 569 U.S. at 204
(“[H]aving been found not to be an aggravated felon, the
noncitizen may seek relief from removal such as asylum or
cancellation of removal, assuming he satisfies the other
eligibility criteria.” (emphasis added)). In short, because the
categorical and modified categorical approaches “answer[]
the purely ‘legal question of what a conviction necessarily
24              MARINELARENA V. SESSIONS

established,’” the burden of proof “does not come into play.”
Sauceda, 819 F.3d at 534 (quoting Mellouli, 135 S. Ct. at
1987).

    The government and dissent both contend, however, that
Moncrieffe’s analysis is limited to the categorical approach
and therefore has no bearing on the application of the
modified categorical approach in this case. See Dissent Op.
48. But this argument also fails. The 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, 570 U.S. at 262
(emphasis added).

     Accordingly, the dissent’s protestations that Moncrieffe
is irrelevant to this case because Moncrieffe involved only the
categorical approach, Dissent Op. 48–50, fall flat; as
Descamps, Mellouli, and Moncrieffe itself demonstrate, the
modified categorical approach is part and parcel of the
categorical approach. To attempt to clinically separate any
discussion of the two phases as unrelated ignores that the
modified categorical approach “retains the categorical
approach’s central feature: a focus on the elements, rather
than the facts, of a crime. And it preserves the categorical
approach’s basic method: comparing those elements with the
generic offense’s.” Descamps, 570 U.S. at 263. The
categorical approach is merely the “mechanism for making
that comparison.” Id.
                 MARINELARENA V. SESSIONS                          25

     Thus, in Moncrieffe, the Court outlined both what we
have called the “categorical” step of the analysis and the
“modified categorical” step of the analysis, and then labeled
the inquiry as a whole “the categorical approach.”
Moncrieffe, 569 U.S. at 191–92 (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, 570 U.S. at 262,
so the court must look to the record of conviction to
determine “which particular offense the noncitizen was
convicted of.” Moncrieffe, 569 U.S. at 191. 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.8

    8
       The dissent argues that we are misreading the paragraph in
Moncrieffe from which this quote, and several other relevant quotes,
originate. Dissent Op. 50–52. The relevant paragraph reads:

        This categorical approach has a long pedigree in our
        Nation’s immigration law. See Das, The Immigration
        Penalties of Criminal Convictions: Resurrecting
        Categorical Analysis in Immigration Law, 86 N.Y.U. L.
        Rev. 1669, 1688–1702, 1749–1752 (2011) (tracing
        judicial decisions back to 1913). The reason is that the
        INA asks what offense the noncitizen was “convicted”
        of, 8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he
26                 MARINELARENA V. SESSIONS




         committed. “[C]onviction” is “the relevant statutory
         hook.” Carachuri-Rosendo v. Holder, 560 U.S. —, —,
         130 S. Ct. 2577, 2588, 177 L.Ed.2d 68 (2010); see
         United States ex rel. Mylius v. Uhl, 210 F. 860, 862
         (C.A.2 1914).

569 U.S. at 191. The dissent reads this paragraph as merely explaining
that the categorical approach applies in the immigration context. Dissent
Op. 51. The dissent is correct that this section makes clear that the
categorical approach applies in the immigration context; the first sentence
says as much. Moncrieffe, 569 U.S. at 191. But the debate in Moncrieffe
was not over whether the categorical approach applied in the immigration
context, but rather over how it is to be applied. See, e.g., id. at 195
(explaining the government’s argument that only the elements of the
offense, and not related sentencing factors, are considered in the
categorical approach). In light of that, the rest of the paragraph and the
citations therein serve to elucidate the precedent and rationales the Court
uses to define the contours of that application.

     The first law review article cited itself describes the “century of
precedent that fleshes out the contours and rationales for [the categorical]
approach.” Das, The Immigration Penalties of Criminal Convictions:
Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev.
1669, 1689 (2011). In particular, the section cited to by the Court focuses
on the cases’ uniform refusal to consider underlying facts of conviction
and their acceptance of an abstract, elements-based inquiry. See, e.g., id.
at 1694 (describing a Second Circuit case in which the court noted that
immigration officials could examine a record of conviction “only to
determine ‘the specific criminal charge of which the alien is found guilty
and for which he is sentenced.’ In other words, ‘[i]f an indictment
contains several counts, one charging a crime involving moral turpitude
and others not, the record of conviction would, of course, have to show
conviction and sentence on the first count to justify deportation’”
(alteration in original) (footnote omitted) (quoting United States ex rel.
Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933))). As this discussion
shows, throughout its long history the categorical approach has been
considered a legal, elements-based approach.
                   MARINELARENA V. SESSIONS                             27

    In Mathis, the Supreme Court reaffirmed that the
categorical and modified categorical approaches are two
aspects of 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.” 136 S. Ct. 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 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). The
Supreme Court has similarly disregarded a distinction


     This conclusion is buoyed by the fact that Carachuri-Rosendo, to
which the Court also cites in the paragraph, rejected broadening the
categorical approach to include a “hypothetical approach” wherein “all
‘conduct punishable as a felony’ [would be treated] as the equivalent of
a ‘conviction’ of a felony” for immigration purposes. Carachuri-Rosendo,
560 U.S. at 575. And the final citation in the paragraph is to a 1914 case,
United States ex rel. Mylius v. Uhl, where the court queried, “[d]oes the
publication of a defamatory libel necessarily involve moral turpitude?”
and answered, “[i]t is not enough that the evidence shows that the
immigrant has committed such a crime, the record must show that he was
convicted of the crime.” 210 F. 860, 862 (2d Cir. 1914).

     Still, the dissent argues that this context is irrelevant, because it
“sheds no light on the question relevant here: who bears the burden of
proving what the petitioner was convicted of.” Dissent Op. 51–52 n.16.
But what this context illuminates is the fact that it is the burden of proof
that is irrelevant, because the categorical approach is and has been a
fundamentally abstract, legal inquiry.
28                 MARINELARENA V. SESSIONS

between the two approaches in other cases. See Taylor,
495 U.S. at 600–02 (referring to both methods as the
“categorical approach”); Duenas-Alvarez, 549 U.S. at 187
(same, but noting that “some courts refer to this step of the
Taylor inquiry as a ‘modified categorical approach’”).

    In other words, whether a case applies what we have
called the “categorical” or the “modified categorical”
approach, the “analysis is the same.” Moncrieffe, 569 U.S. at
191 n.49: The court asks whether the noncitizen was


     9
       The dissent also attempts to dismiss footnote 4 from the
aforementioned Moncrieffe paragraph, see Moncrieffe, 569 U.S. at 191 n.4
(explaining that the “analysis is the same in both [the removal and
cancellation of removal] contexts”), as explaining merely that the
categorical approach applies the same way in both the cancellation and
removal contexts. Dissent Op. 52. We do not disagree with the dissent
on this point; the categorical approach does apply the same way in the
removal and cancellation of removal contexts—in both cases, the court
looks to whether the petitioner was “necessarily” convicted of a
disqualifying federal offense. Moncrieffe, 569 U.S. at 194. That is why
Carachuri-Rosendo’s rationale translates seamlessly to Moncrieffe. See
Dissent Op. 52–54; Moncrieffe, 569 U.S. at 191, 195, 196, 197, 198, 199,
200, 201, 204, 205, 206 (citing to Carachuri-Rosendo when explaining
why the court must reject the government’s attempt to inject a
“hypothetical” element into the categorical approach). Where we part
ways with the dissent is in our view that the categorical approach
encompasses the modified categorical approach.

     In the same vein, the dissent rightly notes that Moncrieffe did not cite
Carachuri-Rosendo to make a point about the burden of proof in
immigration cases. Dissent Op. 53. But that is because the burden of
proof does not affect the application of the categorical, and by extension
modified categorical, approach. There was no point to make. The
question in Moncrieffe, the question in Carachuri-Rosendo, and the
question here is whether the noncitizen has necessarily been “convicted of
any aggravated felony.” Dissent Op. 52. The burden of proof is
irrelevant; if the statute is indivisible, or the Shepard documents
                   MARINELARENA V. SESSIONS                            29

necessarily convicted of an offense disqualifying her from
relief. If the record of conviction is ambiguous on this point
then her “conviction did not ‘necessarily’ involve facts that
correspond to” a disqualifying offense. Moncrieffe, 569 U.S.
at 194–95 (emphasis added). Thus, under the modified
categorical approach, it was error for the BIA to deem
Marinelarena ineligible to apply for cancellation because her
record of conviction is ambiguous.10



ambiguous, the noncitizen has not necessarily been convicted of a
disqualifying offense. Moncrieffe, 569 U.S. at 197–98.
    10
        The dissent argues that our ruling will incentivize petitioners to
conceal their convictions. Dissent Op. 32, 56. This is a red herring and
any danger is vastly overblown. In practice, the government always
investigates and determines whether a noncitizen has convictions that may
be grounds for removal or bars to relief. See, e.g., 8 C.F.R. § 1003.47(c),
(d) (requiring noncitizens to file identifying documentation and provide
biometrics); id. § 1003.47(e) (requiring DHS to “initiate all relevant
identity, law enforcement, or security investigations or examinations
concerning the alien or beneficiaries promptly . . . . and to advise the
immigration judge of the results in a timely manner”). The only relevant
documents—Shepard documents—are public records, which a private
citizen or noncitizen could not possibly destroy. And they would be
nearly impossible for a noncitizen to conceal. And assuming the
documents exist, the government is well, and better, placed to obtain them.
See Immigrant Defense Project Amicus Br. at 18–24. The likelihood that
a petitioner would obtain relief because the government cannot locate an
existing document because the petitioner actively conceals it is therefore
so low as to be nonexistent.

     But more importantly, even if a noncitizen is not barred from relief
because of a disqualifying conviction, the decision whether to then grant
the noncitizen relief is still discretionary. Obfuscation or concealment by
a noncitizen could and likely would be considered by an IJ to be grounds
to deny that discretionary relief. See Moncrieffe, 569 U.S. at 204.
Noncitizens therefore have an overarching incentive to comply with the
government’s procedures.
30                 MARINELARENA V. SESSIONS

    The BIA did not address, however, the question of
whether all the relevant Shepard documents had been
produced. Neither the government nor Marinelarena
provided the plea agreement or plea colloquy. Because this
appeal was focused on whether, when Shepard documents are
inconclusive, an ambiguous record necessarily qualifies as a
federal offense, not whether Marinelarena or the government
failed to produce all required Shepard documents, we do not
reach the issue of which party bears the burden of production
nor the issue of when that burden is satisfied. We thus
remand to the BIA to consider in the first instance the
placement and scope of the burden of production for Shepard
documents as it applies in cancellation of removal.11 See INS
v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (holding that,
where the BIA has not yet considered an issue, courts should
remand to allow the BIA to consider the issue in the first
instance).




     11
       The dissent argues that we err in remanding to the BIA because, the
dissent contends, the law is clear that the burden of production is on the
petitioner. See Dissent Op. 36–37, 37 n.4. Although we express no
opinion as to the applicable burden of production, the question or answer
as to which party bears it is not as cut-and-dried as the dissent suggests.
See 8 C.F.R. § 1240.8(d) (“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 burden of proving by a preponderance of the
evidence that such grounds do not apply.” (emphasis added)). Compare
Pet. Suppl. En Banc Br. at 22–26 (arguing the burden of production is not
on the petitioner), with Resp. Suppl. En Banc Br. at 15–20 (arguing the
reverse). Moreover, as the discussion in footnote 10, supra, of the
carefully laid out procedures in 8 C.F.R. § 1003.47 indicates, the
government appears to be well positioned to address this burden. In any
event, the government counsels us that “[t]his argument was never
presented to the agency, however, and thus is not properly before the
court,” Resp. Suppl. En Banc Br. at 15, and we agree.
               MARINELARENA V. SESSIONS                    31

II. Expungement

    Because we hold that on the present record
Marinelarena’s conviction is not a controlled substance
offense that would bar her from cancellation of removal, we
need not and do not reach the issue of expungement.

                       CONCLUSION

    The record of Marinelarena’s conviction is ambiguous as
to whether she was convicted of conspiring to sell and
transport a controlled substance as defined under federal law.
Therefore, 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).

                          •   !    •

   Accordingly, the petition for review is GRANTED, the
BIA’s decision is REVERSED, and the matter is
REMANDED to the agency for further proceedings
consistent with this opinion.
32             MARINELARENA V. SESSIONS

IKUTA, Circuit Judge, with whom GRABER and
RAWLINSON, Circuit Judges, join, dissenting:

    The majority today creates a new rule that, when an alien
has a prior conviction under a state statute that includes
“multiple, alternative versions of the crime,” Descamps v.
United States, 570 U.S. 254, 262 (2013), and there is
insufficient evidence in the record to prove which of those
alternative versions the alien was convicted of, we must
assume as a matter of law that the alien’s conviction does not
disqualify the alien from receiving immigration relief.
Because this new rule is invented out of whole cloth, will
give aliens a perverse incentive to withhold and conceal
evidence, and is contrary to the Immigration and
Naturalization Act (INA) and Supreme Court decisions, I
dissent.

                              I

     The Department of Homeland Security (DHS) determined
that Aracely Marinelarena was removable as an alien who
had remained in the United States longer than permitted, in
violation of 8 U.S.C. § 1227(a)(1)(B). Therefore, the DHS
initiated removal proceedings by issuing a Notice to Appear.
Marinelarena conceded that she is removable. She then
sought relief from removal by submitting an application for
cancellation of removal.

    In her application for cancellation of removal,
Marinelarena stated: “Convicted 12/28/2006, Charges,
Conspiracy to commit a crime, sale, transportation or offer to
sell controlled substances, Sentence, three months in a State
                  MARINELARENA V. SESSIONS                           33

prison. This sentence is subject to a Motion.”1 Marinelarena
also submitted a two-count criminal complaint filed against
her in 2006. Count 1 charged her with conspiracy to sell and
transport a controlled substance, in violation of California
Penal Code section 182(a)(1) (Conspiracy) and California
Health and Safety Code section 11352 (Offense Involving
Controlled Substances Formerly Classified as Narcotics). In
connection with this conspiracy charge, the indictment
alleged sixteen overt acts, one of which referred to
transportation of three bags containing heroin. Count 2
charged her with the sale, transport, or offer to sell a
controlled substance (heroin), in violation of California
Health and Safety Code section 11352. Marinelarena also
submitted documents filed with the state trial court in support
of her motion for dismissal under California Penal Code
section 1203.4, including an affidavit in which she declared
that she pleaded guilty only to Count 1.

    Over the next two years, Marinelarena appeared with
counsel before the immigration judge (IJ) at four different
hearings. At the first hearing in 2009, Marinelarena’s counsel
acknowledged that Marinelarena had a conviction relating to
transportation of narcotic substances.            Given the
government’s contention that such a conviction would
disqualify Marinelarena from cancellation of removal, the IJ
asked Marinelarena’s counsel for further information and
briefing on the issue. At a 2011 hearing, the IJ reiterated his


    1
      The “motion” referred to in the application is a motion filed under
section 1203.4 of the California Penal Code to dismiss Marinelarena’s
conspiracy conviction. Although her state conviction was dismissed under
section 1203.4 on April 15, 2009, this dismissal has no effect on
removability. See Reyes v. Lynch, 834 F.3d 1104, 1107–08 (9th Cir.
2016) (holding that a “conviction” under the INA includes state
convictions that have been expunged on rehabilitative grounds).
34             MARINELARENA V. SESSIONS

request for briefing and documentation regarding the
conviction.

    At the final hearing in 2012, Marinelarena’s counsel
acknowledged that she still could not produce additional
documentation regarding Marinelarena’s conviction for
conspiracy to distribute narcotics. The IJ pretermitted
Marinelarena’s application for cancellation of removal, but
informed her counsel that if Marinelarena could obtain
evidence that the conviction was not a controlled substance
violation, she could move to reopen the proceedings and
submit that evidence.

    In his oral ruling, the IJ held that because Marinelarena
had failed to produce documents showing that her state
conviction was not for a disqualifying controlled substance
offense, she failed to prove that she was eligible for
cancellation of removal. Among other reasons, the IJ held
that a conviction for conspiracy to distribute heroin made her
ineligible for cancellation pursuant to § 1227(a)(2)(B).

    On appeal to the Board of Immigration Appeals (BIA),
Marinelarena argued that the IJ erred in determining that her
prior state conviction was for a disqualifying offense. The
BIA affirmed. It stated that Marinelarena had the burden of
establishing eligibility for cancellation of removal.
According to the BIA, Marinelarena conceded that she had
been convicted of conspiracy to violate section 11352 of the
California Health and Safety Code and at least some ways of
committing that offense were disqualifying controlled
substance offenses. Marinelarena had the burden of proving
she had not been convicted of a disqualifying controlled
substance offense, and had not carried that burden because
she “had not submitted any evidence establishing that her
                  MARINELARENA V. SESSIONS                          35

conspiracy conviction was not for a disqualifying controlled
substance offense.” Therefore, the BIA held, Marinelarena
was not eligible for cancellation of removal.

                                  II

    Congress decreed that “[a]n alien applying for relief or
protection from removal has the burden of proof.” 8 U.S.C.
§ 1229a(c)(4)(A); see also 8 C.F.R. § 1240.8(d) (providing
that the alien “shall have the burden of establishing that he or
she is eligible for any requested benefit or privilege”).2 To
demonstrate eligibility for cancellation of removal (the
benefit that Marinelarena seeks) the alien must show that the
alien “has not been convicted of any aggravated felony.”
8 U.S.C. § 1229b(a)(3). And if the evidence suggests that a
ground “for mandatory denial of the application for relief 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. § 1240.8(d) (emphases added); cf. Nguyen
v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018) (“[W]hen a
noncitizen is placed in removal proceedings, the burden of
proof shifts depending on whether he is subject to
inadmissibility or removability. An ‘applicant for admission’



    2
      Congress has taken great care in allocating the burden of proof in
various immigration contexts. For instance, Congress provided in
8 U.S.C. § 1229a(c)(2) that “the alien has the burden of establishing”
either (a) entitlement to admission “clearly and beyond doubt” and the
absence of a reason for inadmissibility or (b) “by clear and convincing
evidence,” lawful presence in the United States pursuant to an earlier
admission. Under 8 U.S.C. § 1229a(c)(3)(A), by contrast, the government
“has the burden of establishing by clear and convincing evidence” the
deportability of an alien who has been lawfully admitted to the United
States.
36              MARINELARENA V. SESSIONS

bears the burden of proving he is not inadmissible under
8 U.S.C. § 1182 . . . .”).

    The alien’s burden of proof incorporates the burden of
persuasion. See Schaffer ex rel. Schaffer v. Weast, 546 U.S.
49, 57 (2005) (holding that this is the default rule); cf.
8 U.S.C. § 1229a(c)(4)(B) (in considering an application for
relief from removal, an immigration judge will determine,
among other things, whether the testimony is persuasive, and
sufficient to demonstrate that the alien has satisfied the
alien’s burden of proof). The burden of persuasion
determines which party loses if the record is inconclusive.
See Medtronic, Inc. v. Mirowski Family Ventures, LLC,
571 U.S. 191, 198–200 (2014); see also Overman v. Loesser,
205 F.2d 521, 523 (9th Cir. 1953) (holding that the party who
bears the burden runs “the risk of non-persuasion”). As the
Supreme Court has expressed it, “if the evidence is evenly
balanced, the party that bears the burden of persuasion must
lose.” Dir., Office of Workers’ Comp. Programs v.
Greenwich Collieries, 512 U.S. 267, 272 (1994).

    The alien’s burden of proof also incorporates the burden
of production. In order to show eligibility for relief under the
INA, “[t]he applicant must comply with the applicable
requirements to submit information or documentation in
support of the applicant’s application for relief or protection
as provided by law or by regulation or in the instructions for
the application form.” 8 U.S.C. § 1229a(c)(4)(B). An alien
applying for cancellation of removal must complete Form
EOIR-42B, which requires the applicant to answer the
questions within the form “fully and accurately,” including
answering whether the alien has been “convicted . . . for an
                  MARINELARENA V. SESSIONS                           37

act involving a felony.” EOIR-42B.3 If the alien answers
affirmatively, EOIR-42B states that the alien is “required to
submit documentation of any such occurrences.” Id.4

     Because Congress placed the burden of proof on the alien
to establish eligibility for cancellation of removal, aliens
seeking relief from removal must show that they were not
convicted of a state offense that would disqualify them from
cancellation of removal, 8 U.S.C. § 1229b(b)(1)(C), and will
lose if they cannot do so because the record is inconclusive.
The majority of our sister circuits agree with this principle.
Most recently, the Eighth Circuit addressed this issue in
Pereida v. Barr, 916 F.3d 1128 (8th Cir. 2019), and held that
where the modified categorical approach applies because a
state offense is divisible, and the available documents provide
“no indication of the subsection of the statute under which
[the alien] was convicted,” the alien failed to carry his burden
of proving eligibility for discretionary relief, id. at 1132–33.
In reaching this conclusion, Pereida relied on the Third and
Tenth Circuits, as well as on its own Eighth Circuit precedent,
for the principle that “an inconclusive record is insufficient to
satisfy a noncitizen’s burden of proving eligibility for
discretionary relief.” Id. at 1133.5 The Fourth, Sixth, and

    3
       https://www.justice.gov/sites/default/files/pages/attachments/
2015/07/24/eoir42b.pdf.
    4
      Because the statute makes clear that an alien seeking relief from
removal bears the burden of production, 8 U.S.C. § 1229a(c)(4), 8 C.F.R.
§ 1240.8(d), the majority errs in remanding this matter to the BIA to
determine who has the burden of producing Shepard documents in a
cancellation of removal hearing. Maj. Op. 30.
    5
      See, e.g., Syblis v. Att’y Gen. of U.S., 763 F.3d 348, 357 (3d Cir.
2014) (“[A]n inconclusive record of conviction does not satisfy [an
alien’s] burden of demonstrating eligibility for relief from removal.”);
38                 MARINELARENA V. SESSIONS

Seventh Circuits also expound this rule.6 Only the First
Circuit has rejected this approach. Sauceda v. Lynch,
819 F.3d 526, 533–34 (1st Cir. 2016).7

    In sum, this case raises a single question of law: When an
alien seeks cancellation of removal and it is unclear from the
record whether the alien has a disqualifying criminal
conviction, does the alien win or lose? The majority opinion
ignores the congressional command in the controlling statute
concerning allocation of the burden of proof in that


Lucio-Rayos v. Sessions, 875 F.3d 573, 583–84 (10th Cir. 2017) (holding
that the alien bears the burden of proving that a prior conviction was not
a crime involving moral turpitude, which would make the alien ineligible
for cancellation of removal), cert. denied sub. nom. Lucio-Rayos v.
Whitaker, 139 S. Ct. 865 (2019).
     6
       See, e.g., Salem v. Holder, 647 F.3d 111, 116–20 (4th Cir. 2011)
(“Presentation of an inconclusive record of conviction is insufficient to
meet an alien’s burden of demonstrating eligibility . . . .”); Gutierrez v.
Sessions, 887 F.3d 770, 779 (6th Cir. 2018) (“[W]here a petitioner for
relief under the INA was convicted under an overbroad and divisible
statute, and the record of conviction is inconclusive as to whether the state
offense matched the generic definition of a federal statute, the petitioner
fails to meet her burden.”), cert. denied sub nom. Gutierrez v. Whitaker,
139 S. Ct. 863 (2019); Sanchez v. Holder, 757 F.3d 712, 720 n.6 (7th Cir.
2014) (agreeing with the Fourth and Tenth Circuit that “if the analysis has
run its course and the answer is still unclear, the alien loses by default”).
The majority quibbles that some of these opinions merely “nodded” to this
issue, Maj. Op. 18 n.6, but other circuits likewise read the Third, Fourth,
Fifth, Seventh, and Tenth Circuits as rejecting the majority’s side of the
circuit split. See, e.g., Francisco v. U.S. Att’y Gen., 884 F.3d 1120, 1134
n.37 (11th Cir. 2018).
     7
      While the majority also points to the Second Circuit’s opinion in
Martinez v. Mukasey, Maj. Op. 17 n. 6, that case is inapposite, because it
did not consider or apply the modified categorical approach. See 551 F.3d
113, 118 n.4 (2d Cir. 2008).
               MARINELARENA V. SESSIONS                   39

circumstance by misreading Moncrieffe v. Holder, 569 U.S.
184 (2013), and by conflating a threshold question of fact
(does the record demonstrate clearly that the alien does or
does not have a disqualifying criminal conviction?) with the
resulting question of law.

                             III

    To determine Marinelarena’s eligibility for cancellation
of removal, we must consider two different legal frameworks:
the Supreme Court’s categorical approach for determining
whether the elements of a prior state offense are the same as
or narrower than those of the disqualifying federal offense,
and the INA’s statutory and regulatory framework for
determining whether an alien qualifies for relief from
removal.

                             A

    The categorical approach is a procedure for determining
whether the “state offense is comparable to an offense listed
in the INA.” Moncrieffe, 569 U.S. at 190. “Under this
approach we 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.” Id.
(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186
(2007)). Here, the federal aggravated felony is defined to
include a “controlled substance offense,” meaning a violation
40                 MARINELARENA V. SESSIONS

of any law relating to a controlled substance, as listed on one
of several federal drug lists.8

     To determine whether Marinelarena was convicted of a
state offense that qualifies as a federal controlled substance
offense, we begin by looking at the state statute as a whole.
If the state statute criminalizes the same or less conduct than
the federal controlled substance offense, then the conviction
is a categorical match to the disqualifying federal offense.
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If the
state statute criminalizes more conduct than the federal
controlled substance offense, then the state statute is not a
categorical match. Id. As the Supreme Court has
emphasized, this is a legal question. Mellouli v. Lynch,
135 S. Ct. 1980, 1987 (2015).

    Marinelarena was convicted of violating section 182(a)(1)
of the California Penal Code and section 11352 of the
California Health and Safety Code. Section 182(a)(1)
criminalizes conspiring “[t]o commit any crime.” Cal. Penal
Code § 182(a)(1). This statute criminalizes more conduct
than the federal controlled substances offense, because
“conspiracy” applies to any criminal conspiracy, whether or
not it relates to a controlled substance offense. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(II); id. § 1227(a)(2)(B)(i). We have
previously determined that section 11352 of the California


     8
       More specifically, a federal controlled substance offense includes
the elements of violating (or conspiring to violate) a law relating to a
controlled substance, defined in the Controlled Substances Act (CSA),
21 U.S.C. § 802(6), to mean “a drug or other substance, or immediate
precursor, included in” one of several federal lists of drugs. A conviction
for a state offense that is a categorical match to a federal controlled
substance offense would make Marinelarena ineligible for cancellation of
removal. See 8 U.S.C. § 1182(a)(2)(A)(i)(II); id. § 1227(a)(2)(B)(i).
                    MARINELARENA V. SESSIONS                               41

Health and Safety Code “criminalizes a broader range of
activity and a greater variety of controlled substances than
does federal law,”9 and therefore is not a categorical match
for the federal controlled substance offense. United States v.
Martinez-Lopez, 864 F.3d 1034, 1037–38 (9th Cir. 2017) (en
banc), cert. denied, 138 S. Ct. 523 (2017). Accordingly,
neither statute, taken as a whole, is a categorical match for the
generic federal controlled substance offense.

    This conclusion does not the end the inquiry, however,
because a state criminal statute may include multiple,
alternative versions of the crime. Nijhawan v. Holder,
557 U.S. 29, 35 (2009); see also Moncrieffe, 569 U.S. at 191
(stating that “our cases have addressed state statutes that
contain several different crimes, each described separately”).
A state statute that includes such multiple, alternative
versions of the crime is referred to as “divisible.” Descamps,
570 U.S. at 257.

    Both state statutes at issue here are divisible. Under
section 182, a defendant cannot be convicted for conspiring
to commit a crime generally, but only of conspiring to
commit a specific state offense. People v. Horn, 12 Cal. 3d
290, 297 (1974); see People v. Beardslee, 53 Cal. 3d 68, 92
(1991) (explaining that if there are several acts on which
separate criminal offenses could be found, the jury must agree
on the act forming the basis for the conviction). The jury
must agree unanimously on the offense that was the object of

    9
       Section 11352 of the California Health and Safety Code provides
that “every person who transports [for sale], imports into this state, sells,
furnishes, administers, or gives away, or offers to transport, import into
this state, sell, furnish, administer, or give away, or attempts to import into
this state or transport [various listed controlled substances] . . . shall be
punished by imprisonment.”
42                  MARINELARENA V. SESSIONS

the conspiracy. Id. Section 11352 is likewise divisible. A
jury must agree unanimously on the activity involved and the
controlled substance at issue. See Martinez-Lopez, 864 F.3d
at 1042–43. Each activity and each controlled substance
constitutes a separate crime. Id. at 1043. The jury must agree
unanimously on whether the defendant sold a controlled
substance or transported it for sale and must also agree
unanimously on the specific controlled substance. See id.

    Some of the alternative versions of the offense
criminalized by section 11352 match the federal controlled
substance offense in this case. But some of the versions, such
as transporting apomorphine for sale, are not categorical
matches to the federal generic offense.10 When, as here, a
state statute is divisible, and only some of the alternative
versions of the offense are categorical matches to the federal
generic offense, a court may consider certain types of
evidence to determine which version of the offense the alien
was actually convicted of. This step in the procedure is
sometimes referred to as the modified categorical approach.


     10
         For instance, selling heroin, one version of the offense criminalized
by section 11352, is a categorical match to a federal controlled substance
offense. See Mielewczyk v. Holder, 575 F.3d 992, 996 (9th Cir. 2009)
(holding that a conviction for the transportation of heroin “under
California Health and Safety Code section 11352(a) is a ‘violation of . . .
[a] law or regulation of a State . . . relating to a controlled substance (as
defined in section 802 of Title 21)’”). But transporting apomorphine for
sale is not. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.
2007) (“[T]he possession of apomorphine is specifically excluded from
Schedule II of the CSA, but California’s Schedule II specifically includes
it.” (citation omitted)), abrogation recognized by Villavicencio v. Sessions,
904 F.3d 658, 665 (9th Cir. 2018); compare Cal. Health & Safety Code
§ 11055(b)(1)(G) (2002) (classifying apomorphine as a Schedule II drug),
with 21 U.S.C. § 802(6), and 21 C.F.R. §§ 1308.11–.15 (excluding
apomorphine as a federally proscribed substance).
                   MARINELARENA V. SESSIONS                            43

Descamps, 570 U.S. at 257. It involves two distinct inquiries,
one factual and one legal.

     First, as a factual matter, the court must consider “a
limited class of documents [from the record of a prior
conviction] to determine what crime, with what elements, a
defendant was convicted of.” Mathis, 136 S. Ct. at 2249
(citing Shepard v. United States, 544 U.S. 13, 26 (2005)). Of
course, the crime that a defendant was convicted of is a
matter of historical fact. The documents a court may consider
in applying the modified categorical approach include the
“charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard, 544 U.S.
at 16; see also Moncrieffe, 569 U.S. at 190–91. The court
must examine these documents to establish which alternative
version of the state offense the alien was convicted of.11


    11
       The majority opinion makes a critical error at this first step, see
Maj. Op. 23, by failing to distinguish between “the fact that the defendant
had been convicted of crimes falling within certain categories,” which a
court may consider, with the “facts underlying the prior convictions,”
which a court may not consider. Taylor v. United States, 495 U.S. 575,
600–01 (1990) (emphasis added). According to the majority opinion,
“[w]hat the [Shepard] documents show is . . . a purely legal question”
because the Shepard documents “either show that the petitioner was
convicted of a disqualifying offense under the categorical approach, or
they do not.” Maj. Op. 23. But obviously, it is a matter of historical fact
whether the petitioner was convicted of a specific offense; it is not a
purely legal question like the meaning of a statute. And indeed, we often
consider the facts in the record to determine the petitioner’s actual crime
of conviction. We may piece together the clues in the Shepard
documents, such as putting the defendant’s plea to Count 1 (as reported in
the minute order) together with the description of Count 1 set out in the
indictment, in order to determine the offense of conviction. See Ruiz-
Vidal v. Lynch, 803 F.3d 1049, 1052–55 (9th Cir. 2015). Similarly, “when
a defendant references a specific count during his plea colloquy,” a court
44                 MARINELARENA V. SESSIONS

     If the court can determine the version of the offense, the
court then proceeds to the legal inquiry. The court
“compare[s] that crime, as the categorical approach
commands, with the relevant generic offense” to determine
whether they are a categorical match. Mathis, 136 S. Ct. at
2249. This second step of the modified categorical approach
is identical to the above-described categorical approach: it is
a purely legal inquiry that consists of comparing the
applicable version of the state offense to the federal generic
offense. See id. As in the categorical approach, a court does
not consider the alien’s underlying conduct. Taylor v. United
States, 495 U.S. 575, 600 (1990) (“Congress intended the
sentencing court to look only to the fact that the defendant
had been convicted of crimes falling within certain
categories, and not to the facts underlying the prior
convictions.”). The question is not what the alien actually
did, but under which provision of the state statute the alien
was convicted.12




“can also consider the drug listed in the charging document” to determine
the offense of conviction. Id.; see also United States v. Valdavinos-
Torres, 704 F.3d 679, 687–88 (9th Cir. 2012).
     12
        The majority holds that, because “[t]he modified categorical
approach is merely a ‘version of [the categorical] approach,’” Maj. Op.
22 (quoting Mellouli, 135 S. Ct. at 1986 n.4), and has been described by
the Court as “a tool for implementing the categorical approach,” Maj. Op.
24 (emphasis omitted) (quoting Descamps, 570 U.S. at 262), the modified
categorical approach is a “legal query [that] requires no factual finding
and is therefore unaffected by statutory ‘burdens of proof.’” Maj. Op. 21.
The majority is correct that, at the second step of the categorical approach,
the inquiry is purely legal. Its mistake, however, is holding that the first
step of the modified categorical approach, in which a court “examine[s]
a limited class of documents to determine which of a statute’s alternative
elements formed the basis of the defendant’s prior conviction,” Maj. Op.
                   MARINELARENA V. SESSIONS                           45

    Here, both sections 182(a)(1) and 11352 include multiple,
alternative versions of a crime, some of which match the
federal controlled substance offense and some of which do
not. This means that a court must consider the judicially
noticeable documents in the record to answer the historical,
factual question: which alternative version of the state
offense was Marinelarena convicted of?

    The only judicially noticeable document in the record is
the criminal complaint charging Marinelarena with
(1) conspiracy to sell and transport a controlled substance and
(2) selling, transporting, or offering to sell heroin. However,
a criminal complaint, without more, is insufficient to
establish which state crime a defendant was convicted of. See
United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007)
(en banc) (holding that the complaint in that case “fails to
establish the factual predicate for [the defendant’s] plea of
guilty”).     Despite numerous opportunities to do so,
Marinelarena failed to produce any document of conviction
that could establish which alternative version of the offense
she was convicted of. Here, because the record includes only
the criminal complaint, the judicially noticeable documents
do not allow a court to make the historical, factual
determination as to which version Marinelarena was
convicted of.

    So where does that leave us? Simply said, we have
reached the end of the categorical analysis. Because we don’t
know the applicable version of the state offense, we cannot
compare it with the federal controlled substance offense to


24 (quoting Descamps, 570 U.S. at 262), is also a pure question of law and
can be conducted without reference to historical, factual records of
conviction.
46              MARINELARENA V. SESSIONS

determine whether they match. Therefore, we cannot
determine whether Marinelarena’s prior conviction was for a
disqualifying or nondisqualifying offense. And contrary to
the majority’s view, we may not assume the answer to this
factual question; there is no statutory or precedential basis for
giving a legal answer to the factual question of what offense
Marinelarena was actually convicted of.

                               B

    While this ends our application of the categorical
approach, it does not end the analysis. Rather, it is necessary
to consider how this conclusion fits within the legal
framework of the INA.

    Under the INA, “[i]f 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 burden of
proving by a preponderance of the evidence that such grounds
do not apply.” 8 C.F.R. § 1240.8(d) (emphasis added).
Although there are many alternative versions of the offense
proscribed by section 11352, the record does not show which
version Marinelarena was convicted of.                  Though
Marinelarena could have been convicted of a state offense
that did not disqualify her from relief, the IJ’s determination
that “one or more of the grounds for mandatory denial of the
application for relief may apply,” id. (emphasis added), was
supported by substantial evidence. In short, because
Marinelarena bears the burden of proof, and the record is
inconclusive, she must lose. Greenwich Collieries, 512 U.S.
at 272; see also Lucio-Rayos, 875 F.3d at 581. Thus, the BIA
did not err in holding that Marinelarena failed to prove her
eligibility for cancellation of removal.
                   MARINELARENA V. SESSIONS                              47

    We considered a similar situation in Young v. Holder,
where the alien “pleaded guilty to a conjunctively phrased
indictment that alleged several theories of the crime, any one
of which would have sustained a state conviction, but only
some of which would constitute an aggravated felony” that
would disqualify the alien from being eligible for cancellation
of removal. 697 F.3d 976, 988 (9th Cir. 2012) (en banc).
Because we could not “tell from the record of conviction
whether [the alien] was convicted of selling cocaine, which
is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), or
merely of solicitation, which is not, [the alien’s] record of
conviction is inconclusive.” Id. Because the record was
inconclusive, we held that the alien had not carried his burden
of demonstrating eligibility for cancellation of removal. Id.
at 989. Young was correctly decided, and it applies here. 13

                                    IV

   The majority relies almost exclusively on Moncrieffe in
holding that, contrary to Young, we must conclude as a matter


    13
       Pereida adopted an identical approach. See Pereida, 916 F.3d
1128. In Pereida, the Eighth Circuit considered whether an alien’s
conviction under a Nebraska statute constituted a crime involving moral
turpitude. The court first determined that the Nebraska statute was not
categorically a crime involving moral turpitude, because one of the
alternative offenses criminalized by the statute did not involve fraud or
deception. Id. at 1132. But, the Eighth Circuit explained, “[b]ecause this
statute is divisible, the inquiry does not end here.” Id. Applying the
modified categorical approach, the Eighth Circuit noted that the available
documents provided “no indication of the subsection of the statute under
which [the alien] was convicted.” Id. Because of the court’s “inability to
discern the particular crime for which [the alien] was convicted” from the
alien’s inconclusive record, id. at 1133, the Eighth Circuit held that the
alien had not carried his burden to establish eligibility for cancellation of
removal, and therefore denied the petition for relief.
48                  MARINELARENA V. SESSIONS

of law that when the evidence does not conclusively establish
which alternative version of the state offense Marinelarena
was convicted of, we must assume that the alien’s conviction
does not disqualify the alien from receiving immigration
relief. This reliance is misplaced, however, because
Moncrieffe was decided on the ground that the state offense
was not a categorical match to a federal offense; in
Moncrieffe, there was no question about which state offense
the alien was convicted of. Indeed, Moncrieffe did not
involve any use of the modified categorical approach. Thus,
Moncrieffe did not address the situation in Young, let alone
overrule it.

                                      A

    In Moncrieffe, the alien had been convicted under a
Georgia statute for possession of marijuana with intent to
distribute. 569 U.S. at 188–89 n.2. The question in that case
was whether this state offense matched the federal generic
offense of “drug trafficking crime,” which was defined as
possession of more than a small amount of marijuana with
intent to distribute it for remuneration. Id.14


     14
        Specifically, Moncrieffe considered whether the alien had been
convicted of an aggravated felony, which includes “a drug trafficking
crime” as defined in 18 U.S.C. § 924(c). 569 U.S. at 188. Under
§ 924(c), a “drug trafficking crime” includes “any felony punishable under
the Controlled Substances Act”; whereas a “felony” is an offense for
which the “maximum term of imprisonment authorized” is “more than one
year,” see 18 U.S.C. § 3559(a)(5). In Moncrieffe, the relevant federal
generic drug trafficking crime was the federal crime to “possess with
intent to . . . distribute . . . a controlled substance,” 21 U.S.C. § 841(a)(1),
one of which is marijuana, see id. § 812(c). Not every violation of
§ 841(a) was a drug trafficking crime, however, because § 841(a)(1) was
punishable as a misdemeanor if a person violated the statute “by
distributing a small amount of marihuana for no remuneration.”
                   MARINELARENA V. SESSIONS                             49

    The state crime of conviction in Moncrieffe made it a
crime to “possess, have under [one’s] control, manufacture,
deliver, distribute, dispense, administer, purchase, sell, or
possess with intent to distribute marijuana.” Ga. Code Ann.
§ 16-13-30(j)(1); Moncrieffe, 569 U.S. at 192. Taken as a
whole, the statute was not a categorical match for the federal
drug trafficking crime, because it was possible to be
convicted for possessing a small amount of marijuana for no
remuneration. Moncrieffe, 569 U.S. at 192–94.

    Nor was the state statute divisible in a relevant way.
While the state statute listed different acts, it did not create
separate versions of the offense based on the amount of
marijuana or whether the distribution of marijuana was for
remuneration. See id. at 194 (noting that the “fact of a
conviction for possession with intent to distribute marijuana,
standing alone, does not reveal whether either remuneration
or more than a small amount of marijuana was involved”).

    Because the state statute was not divisible, and it
criminalized conduct that under federal law “could
correspond to either the CSA felony or the CSA
misdemeanor,” a conviction under that statute “did not
‘necessarily’ involve facts that correspond to an offense
punishable as a felony under the CSA.” Id. at 194–95.
Accordingly, the state statute was overbroad, and “[u]nder the
categorical approach,” the alien “was not convicted of an
aggravated felony.” Id. at 195.




Moncrieffe, 569 U.S. at 193–94. Accordingly, Moncrieffe determined that
the relevant federal drug trafficking crime in that case was possession with
intent to distribute marijuana, involving more than “a small amount for no
remuneration.” Id.
50                MARINELARENA V. SESSIONS

    Unlike our case, the record in Moncrieffe established the
exact state offense the alien was convicted of. Because the
Court did not need to consider which alternative version of
the offense the alien was convicted of, it did not address the
issue here: what to do when it is not clear what version of the
state offense the alien was convicted of. Therefore,
Moncrieffe does not control the analysis in our case.15

                                   B

    A brief digression is necessary here to address a passage
and a footnote in Moncrieffe which have been the source of
great confusion and error. In the section of the opinion
addressing the categorical approach generally, Moncrieffe
notes:

          This categorical approach has a long pedigree
          in our Nation’s immigration law. See Das,
          The Immigration Penalties of Criminal
          Convictions: Resurrecting Categorical
          Analysis in Immigration Law, 86 N.Y.U.L.
          Rev. 1669, 1688–1702, 1749–1752 (2011)
          (tracing judicial decisions back to 1913). The
          reason is that the INA asks what offense the


     15
       The majority argues that Moncrieffe controls this analysis because
the categorical and modified categorical approach address the same legal
issue, Maj. Op. 24, whether the crime the alien was convicted of matches
the generic federal offense (rather than whether the alien committed such
a crime). This is correct at step two of the modified categorical
approach—but only after the court has completed step one, and identified
the version of the state offense the alien was convicted of. And
Moncrieffe has nothing to say about how courts should identify the
relevant version of the state offense of conviction when the record of
conviction is ambiguous—the question presented in this case.
                  MARINELARENA V. SESSIONS                          51

         noncitizen was “convicted” of, 8 U.S.C.
         § 1227(a)(2)(A)(iii), not what acts he
         committed. “[C]onviction” is “the relevant
         statutory hook.”      Carachuri-Rosendo v.
         Holder, 560 U.S. 563, 580 (2010); see United
         States ex rel. Mylius v. Uhl, 210 F. 860, 862
         (2d Cir. 1914).

569 U.S. at 191. In light of the context and citations, it is
clear that this section merely reenforces the applicability of
the categorical approach in the immigration context. Das
recounts the deep roots of the categorical approach in
immigration law to show that “[t]he basic structure of the
immigration statute—predicating certain immigration
penalties on convictions—has remained unchanged since
courts first articulated categorical analysis in the early
twentieth century.” Alina Das, The Immigration Penalties of
Criminal Convictions: Resurrecting Categorical Analysis in
Immigration Law, 86 N.Y.U.L. Rev. 1669, 1701 (2011). In
enacting the modern day Immigration and Nationality Act,
Das argues, “Congress intended a categorical analysis to
apply wherever it predicated immigration penalties on
convictions.” Id. at 1698. Citing Das’s historical overview,
Moncrieffe stated that “[t]he reason [why the categorical
approach is applied ‘in our Nation’s immigration law’] is that
the INA asks what offense the noncitizen was ‘convicted’ of,
8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he committed.
‘[C]onviction’ is ‘the relevant statutory hook.’” 569 U.S. at
191 (quoting Carachuri-Rosendo, 560 U.S. at 580).16 But


    16
       The majority opinion reiterates at great length Das’s point that
“immigration adjudicators may not go behind the judgment and record of
conviction to assess the facts and circumstances of a noncitizen’s
particular offense,” Das, supra, at 1696. Maj. Op. 25–27 n.8. This
52                 MARINELARENA V. SESSIONS

neither Das’s article, nor Moncrieffe’s reaffirmation of the
categorical approach, addresses who bears the burden of
proving the nature of the relevant conviction.

    In the footnote immediately after this passage, Moncrieffe
explains its citation to Carachuri-Rosendo by stating that the
case “construed a different provision of the INA that concerns
cancellation of removal, which also requires determining
whether the noncitizen has been ‘convicted of any aggravated
felony.’ 8 U.S.C. § 1229b(a)(3) (emphasis added). Our
analysis is the same in both contexts.” Id. at 191 n.4. In
context, the footnote explains why the cite to Carachuri-
Rosendo (which involved cancellation of removal) is on
point: because the categorical approach applies the same way
in removal and relief-from-removal contexts, Carachuri-
Rosendo supports Moncrieffe’s point that the categorical
approach applies in the immigration context when the
disposition of a petitioner’s case depends on the nature of a
prior conviction.

   This interpretation is confirmed by a brief review of
Carachuri-Rosendo. In Carachuri-Rosendo, an alien had
committed two misdemeanor drug possession offenses in
Texas. 560 U.S. at 566. As in our case, the alien conceded
removability, but sought cancellation of removal. Id. The
question for the Court was whether the alien’s state crimes of
conviction constituted an “aggravated felony” for purposes of
immigration law, which would make him ineligible for
cancellation of removal. Id.




assertion, while correct, sheds no light on the question relevant here: who
bears the burden of proving what the petitioner was convicted of.
               MARINELARENA V. SESSIONS                    53

    Carachuri-Rosendo applied a categorical approach to this
problem. It first determined that the federal generic offense
was simple possession of a controlled substance after a prior
conviction (i.e., “recidivist simple possession”) pursuant to
21 U.S.C. § 844(a), which was punishable as a felony. Id. at
567–68. Turning to the state crime of conviction, Carachuri-
Rosendo determined that the alien had been convicted of a
simple possession offense, not recidivist simple possession.
Id. at 570. Because the state offense of conviction was not a
categorical match to the federal generic offense, the
conviction did not preclude cancellation of removal. Id. The
Court rejected the government’s argument that the alien was
ineligible for cancellation of removal because the alien could
have been convicted in state court of recidivist simple
possession (due to a prior possession conviction). Id. As the
Court made clear, the INA requires courts to consider only
the conviction itself, not “what might have or could have
been charged.” Id. at 576.

    Accordingly, Carachuri-Rosendo stands only for the
proposition that where the state offense of conviction does
not match the federal generic offense, the alien has not been
convicted of a disqualifying federal generic offense. It does
not address the question raised in this case, which is how to
determine which version of the state offense the alien was
actually convicted of. Moreover, there is no reason to think
Moncrieffe cited Carachuri-Rosendo to make a point about
the burden of proof in immigration cases, an issue raised
neither in Carachuri-Rosendo nor Moncrieffe. Moncrieffe’s
footnote 4 is best understood as merely further bolstering the
54                 MARINELARENA V. SESSIONS

point that the categorical approach applies in immigration
cases.17

                                    C

    Moncrieffe does not address the situation we addressed in
Young, where the state statute of conviction was divisible, so
that some of the versions of the state offense categorically
qualified as a federal generic offense and others did not. In
that situation, a court may consider evidence in the record to
determine which version of the state crime the alien was
convicted of. This question of what offense the alien was
actually convicted of is a historical factual issue, not a legal
issue.

    In holding otherwise, the majority confuses the
categorical approach in Moncrieffe with the historical factual
question of what state statute the alien was convicted of.
Thus, the majority states that Moncrieffe’s “mode of analysis
is clearly irreconcilable with Young,” Maj. Op. 19, because
Moncrieffe held that “[i]f the record does not conclusively


     17
       The majority interprets footnote 4 to mean that whenever there is
ambiguity regarding the nature of the state offense, that offense is deemed
not disqualifying, regardless whether the government is seeking removal
or the alien is seeking relief from removal. Otherwise, the majority
argues, there would be “an exceedingly odd result” because it is possible
that the government could not prove the alien was removable, while at the
same time the alien could not prove eligibility for asylum or cancellation
of removal. Maj. Op. 20. This “odd” result, however, is compelled by the
INA and its shifting burden of proof: the government bears the burden of
proving “by clear and convincing evidence that the respondent is
deportable as charged,” 8 C.F.R. § 1240.8(a), while the alien “shall have
the burden of establishing that he or she is eligible for any requested
benefit or privilege and that it should be granted in the exercise of
discretion,” id. at § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4).
                MARINELARENA V. SESSIONS                      55

establish that the noncitizen was convicted of the elements of
the generic offense, then she was not convicted of the offense
for purposes of the immigration statutes,” Maj. Op. 20. But
a reader will search in vain for any such ruling in Moncrieffe.
Moncrieffe merely applied the familiar rule that a court may
consider only the offense of conviction, not the facts
underlying the conviction, in determining whether an alien
was convicted of a disqualifying offense for purposes of the
immigration statutes. 569 U.S. at 205–06. Because in
Moncrieffe the alien was convicted of a state offense that was
not divisible, the Court had no occasion to address a case
where the record did not establish which version of a state
offense the alien was convicted of.

    In short, the majority misreads Moncrieffe by confusing
a legal question (whether there is a categorical match) with a
factual question (what was the alien convicted of in state
court). When a state statute includes many alternative
versions of an offense, a court must determine the historical,
factual question of what the alien was convicted of based on
the evidence in the record. Only then can we ask the legal
question: whether that offense is a match for a disqualifying
federal offense.

                               V

    By confusing the legal and factual issues, the majority
creates the new rule that, when an alien is convicted under a
state statute that includes multiple, alternative versions of the
offense, and there is insufficient evidence in the record to
prove what version the alien was convicted of, we must
assume as a matter of law that the alien was convicted of a
version of the state offense that does not match the federal
generic offense. This rule finds no support whatsoever in
56                 MARINELARENA V. SESSIONS

Moncrieffe. The majority opinion’s rule is also directly
contrary to Young, which was not overruled by Moncrieffe
because Young and Moncrieffe address entirely distinct
issues. Moreover, the majority opinion conflicts with the
majority of our sister circuits, and instead joins the single
circuit that adopted the wrong approach. Most important, the
new rule is contrary to the INA in that it overrides the statute
and regulation putting the burden on the alien “to establish
that the alien . . . satisfies the applicable eligibility
requirements” for various forms of relief. 8 U.S.C.
§ 1229a(c)(4)(A). And because the INA imposes the burden
of production on the alien, 8 U.S.C. § 1229a(c)(4), 8 C.F.R.
§ 1240.8(d), the majority’s rule that the alien is entitled to
relief whenever the record is ambiguous will encourage aliens
to withhold and conceal evidence.18

   Under the INA and our caselaw, if the state statute of
conviction is divisible, and the alien was convicted of a
specific alternative version of a state offense, then the alien


     18
        In this case, for instance, Marinelarena has declined to produce
additional Shepard documents (despite urgings by the IJ to do so). Nor
has she stated that her offense of conviction is not disqualifying. A fair
inference, therefore, is that she is relying on a strategic absence of
documentation to obtain immigration benefits. The majority provides no
support for its claim that in practice the government can find and produce
an alien’s convictions to avoid abuses of the immigration system, Maj.
Op. 29 n.10. In this very case, the government has been unable to produce
additional Shepard documents. Given the government’s backlog of over
5 million claims for immigration benefits, see U.S. Citizenship and
Immigration Servs., Response to Representative Garcia’s February 12,
2019 Letter at 3 (April 2019), and its systemic problems, see U.S.
Citizenship & Immigration Servs., Annual Report 2018 at 19 (June 28,
2018) (noting substantial obstacles in implementing its immigration
system database), enforcing the regulation’s burden of production is
critical for avoiding abuse and fraud.
               MARINELARENA V. SESSIONS                    57

seeking relief from removal has the burden of proving that the
conviction does not disqualify the alien from that relief.
Because the majority holds to the contrary, I dissent.
