CA9 Overturns Almanza-Arenas (CIMT, Inconclusive Record; Young v. Holder abrogated in part)

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

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

The panel, however, proceeded to apply the modified categorical approach, in order to demonstrate and correct the BIA’s error. The panel held that because the record was inconclusive as to whether Almanza-Arenas was convicted of temporarily or permanently taking a vehicle, the BIA erred in finding him ineligible for cancellation of removal. The panel further held that the holding in Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) (a petitioner cannot fulfill his burden to demonstrate eligibility for cancellation by establishing an inconclusive record), has been abrogated in part by the holding in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (an alien convicted under a state statute whose elements are not “necessarily” the same as the generic federal disqualifying offense remains eligible for cancellation). The panel remanded to the BIA for further proceedings." - Almanza-Arenas v. Holder, Nov. 10, 2014.

[Hats way off to Murray Hilts, Michael Codner, Jayashri Srikantiah, Alison Kamhi, Manuel Vargas and Isaac Wheeler!]