Split En Banc CA9 on Modified Categorical Approach: Young v. Holder

Majority: "The evidentiary limitations articulated in  Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. § 1229b. ... Under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant’s conviction. In other words, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes a conviction under at least one, but not necessarily all, of those theories. In so deciding, we reconcile our inconsistent precedents on this issue by adopting one line of cases—including Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir. 2007)—and rejecting the other, including United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc) (per curiam). ... An alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony. We overrule Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007), and Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84 (9th Cir. 2011), to the extent that they conflict with this holding."

Dissent: "In today’s splintered decision, a two-judge  “majority” holds that Congress intended strict and arbitrary evidentiary limitations to be read into the cancellation of removal statute, despite the fact that the statute clearly states an alien’s rights to introduce evidence and testimony. Correctly recognizing that the “majority’s” holding is absurd, five judges have voted to alleviate the inherent unfairness by redefining the statutory language to mean the exact opposite of what it actually says. Both approaches are wrong: both are contrary to the plain language of the statute, and both reach outcomes that are neither contemplated by Congress nor dictated by common sense. I therefore dissent from the en banc decision as a whole, and I write separately to demonstrate why this confusion could have been avoided if we had just followed what the statute says. ... The oddities of our division have now saddled us with a ruling with which nine judges disagree and which departs from the language of the statute in a way that most seriously disadvantages the alien."

- Young v. Holder, Sept. 17, 2012.