En Banc CA9 Overrules Young v. Holder: Marinelarena v. Sessions

Marinelarena v. Sessions

"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. 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."