CRIMINAL ISSUES IN IMMIGRATION LAW

I. JUDICIAL REVIEW

A. Judicial Review Scheme Before Enactment of the REAL ID Act of 2005

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which limited petition-for-review jurisdiction for individuals removable based on enumerated crimes. See 8 U.S.C. § 1252(a)(2)(C) (permanent rules); IIRIRA section 309(c)(4)(G) (transitional rules). For § 1252(a)(2)(C)’s jurisdiction-stripping provision to apply, its language requires that the agency determine that the petitioner is actually removable and order the petitioner removed on a basis specified in that section. See Alvarez-Santos v. INS, 332 F.3d 1245, 1250–53 (9th Cir. 2003); see also Unuakhaulu v. Gonzales, 416 F.3d 931, 936–37 (9th Cir. 2005) (exercising jurisdiction because while agency found applicant removable based on aggravated felony conviction, removal was not ordered on that basis and alternate grounds of removal were charged).

Under the IIRIRA provisions, if the court determined that the petitioner was ordered removed or ineligible for relief from removal based on a conviction for an enumerated crime, it lacked direct judicial review over the petition for review. Cf. Unuakhaulu, 416 F.3d at 937; Alvarez-Santos, 332 F.3d at 1253. However, the court retained jurisdiction to determine its own jurisdiction, Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000), and to decide “three threshold issues: whether the petitioner was [1] an alien, [2] removable, and [3] removable because of a conviction for a qualifying crime,” see Zavaleta-Gallegos v. INS, 261 F.3d 951, 954 (9th Cir. 2001) (internal quotation marks, alteration, and emphasis omitted).

Where direct judicial review was unavailable over a final order of deportation or removal, a petitioner could file a petition for writ of habeas corpus in district court under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (AEDPA and IIRIRA did not repeal habeas corpus jurisdiction to challenge the legal validity of a final order of deportation or removal).

Cross-reference: Jurisdiction over Immigration Petitions, Limitations on Judicial Review Based on Criminal Offenses.

B. The Current Judicial Review Scheme under the REAL ID Act of 2005

1. Expanded Jurisdiction on Direct Review

In May 2005, Congress amended the Immigration and Nationality Act (“INA”) to expand the scope of direct judicial review over petitions for review brought by individuals removable based on enumerated crimes, and to limit the availability of habeas corpus relief over challenges to final orders of removal, deportation, or exclusion. Congress explicitly made the REAL ID Act’s judicial review amendments retroactive and directed that they shall apply to all cases in which the final administrative order was issued before, on, or after May 11, 2005, the date of enactment of the Act. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (habeas corpus petition pending when REAL ID Act enacted).

The REAL ID Act added the following new judicial review provision to 8 U.S.C. § 1252:

Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D); REAL ID Act, Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005). Pursuant to this provision, the court has jurisdiction to review constitutional claims and questions of law presented in petitions for review of final orders of removal, including those brought by individuals found removable based on certain enumerated crimes. See Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (“[J]udicial review of final orders of removal is somewhat limited in cases … involving noncitizens convicted of crimes specified in § 1252(a)(2)(C). In those cases, a court of appeals may review constitutional or legal challenges to a final order of removal, but the court of appeals may not review factual challenges to a final order of removal.”); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020) (8 U.S.C. § 1252(a)(2)(D) provides that in immigration cases involving noncitizens who are removable for having committed certain crimes, a court of appeals may consider constitutional claims or questions of law); Orellana v. Barr, 967 F.3d 927, 931–32 (9th Cir. 2020) (“With the exception of constitutional claims and questions of law, we lack jurisdiction to review a final order of removal against an alien who is removable for having committed two CIMTs not arising out of a single scheme of criminal misconduct when a sentence of one year or longer may be imposed on each offense.”); Dominguez v. Barr, 975 F.3d 725, 733–34 (9th Cir. 2020) (as amended) (“We lack jurisdiction to review any final order of removal against an alien who is removable for committing an aggravated felony, retaining jurisdiction only to review jurisdictional issues, questions of law, and constitutional claims.” (internal quotation marks and citation omitted)).

See also, e.g., Benedicto v. Garland, 12 F.4th 1049, 1062 (9th Cir. 2021) (“Jurisdiction to review [IJ’s particularly serious crime determination] only exists in a very narrow circumstance: when the petitioner raises ‘a constitutional or legal question,’ not simply where ‘he asks for a re-weighing of the factors.’”); Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (although court lacked jurisdiction over determination that noncitizen committed a particularly serious crime, the court retained jurisdiction to determine whether the BIA applied the correct legal standard); Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (same); Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019) (“We lack jurisdiction to review any final order of removal against an alien who is removable because he committed an aggravated felony, … , but we retain jurisdiction to decide our own jurisdiction and to resolve questions of law.” (internal quotation marks and citation omitted)); Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018) (reviewing whether BIA applied the proper legal standard, concluding BIA’s underlying rationale for its decision was unreasonable, and remanding for BIA to consider all reliable, relevant information, when making its particularly serious crime determination); Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013) (explaining that while the court cannot reweigh the evidence to determine if the crime was particularly serious, it does have jurisdiction to determine whether the agency applied the correct legal standard); Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (jurisdiction to review whether a state crime of conviction is an aggravated felony.”); Arbid v. Holder, 700 F.3d 379, 382 (9th Cir. 2012) (per curiam) (as amended) (jurisdiction to review BIA’s determination that noncitizen was convicted of a particularly serious crime); Rivera-Peraza v. Holder, 684 F.3d 906, 909 (9th Cir. 2012) (court had jurisdiction to review whether BIA used erroneous legal standard in its analysis of petitioner’s application for waiver of inadmissibility); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010) (court retains jurisdiction to determine its jurisdiction, and thus has jurisdiction to determine whether an offense is an aggravated felony); Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010) (court has jurisdiction to determine whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions); Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (stating the court has “jurisdiction to review whether the BIA and IJ failed to consider the appropriate factors, … , or relied on improper evidence, …, in making the ‘particularly serious crime’ determination.” (citations omitted)).

“[T]he jurisdictional bar set forth in § 1252(a)(2)(C) is subject to two exceptions. The first exception permits [] review of questions of law or constitutional claims. The second exception permits [] review when the IJ denies relief on the merits of the claim rather than in reliance on the conviction, i.e., when the IJ concludes that the petitioner failed to establish the requisite grounds for relief.” Perez-Palafox v. Holder, 744 F.3d 1138, 1144 (9th Cir. 2014) (internal quotation marks and citations omitted) (reviewing legal question whether the BIA engaged in impermissible fact finding). See also Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam) (“We lack jurisdiction to review ‘any final order of removal against an alien who is removable’ because he committed an aggravated felony, see 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii), but ‘we retain jurisdiction to decide our own jurisdiction and to resolve questions of law,’ Bolanos v. Holder, 734 F.3d 875, 876 (9th Cir. 2013)’); Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (“Although [the court lacks] ‘jurisdiction to review any final order of removal against an alien who is removable by reason of having committed’ an aggravated felony (among other offenses),8 U.S.C. § 1252(a)(2)(C), [the court] retains jurisdiction over ‘constitutional claims or questions of law,’8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony.”);Planes v. Holder, 652 F.3d 991, 997–98 (9th Cir. 2011) (where BIA made no legal error regarding criminal grounds for removability, court lacked jurisdiction to review final order of removal under 8 U.S.C. § 1252(a)(2)(C)).

Although the court does not have jurisdiction to evaluate discretionary decisions by the Attorney General, the court retains jurisdiction to review questions of law raised in a petition for review. See Mairena, 917 F.3d at 1123 (although the court cannot reweigh evidence, the court can determine whether the BIA applied the correct legal standard); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (explaining review of particularly serious crime determination is limited to ensuring the agency relied on appropriate factors and proper evidence to reach its conclusion); Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (the court cannot reweigh evidence to determine if crime was particularly serious, but the court has jurisdiction to determine whether correct legal standard was applied); Aguilar-Turcios v. Holder, 740 F.3d 1294, 1299 (9th Cir. 2014) (court lacks jurisdiction to review final order of removal against alien convicted of aggravated felony, but retains jurisdiction to review whether conviction qualifies as an aggravated felony under federal law); Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (explaining court had jurisdiction to determine if the BIA applied the correct legal standard in making its particularly serious crime determination); see also Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018) (reviewing whether BIA applied the proper legal standard, concluding BIA’s underlying rationale for its decision was unreasonable, and remanding for BIA to consider all reliable, relevant information, when making its particularly serious crime determination); Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) (“Although [the court lacks] ‘jurisdiction to review any final order of removal against an alien who is removable by reason of having committed’ an aggravated felony (among other offenses), 8 U.S.C. § 1252(a)(2)(C), [the court] retains jurisdiction over ‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony.”); Arbid v. Holder, 700 F.3d 379, 382 (9th Cir. 2012) (per curiam) (as amended) (jurisdiction to review BIA’s determination that alien was convicted of a particularly serious crime); Rivera-Peraza v. Holder, 684 F.3d 906, 909 (9th Cir. 2012) (court had jurisdiction to review whether BIA used erroneous legal standard in its analysis of petitioner’s application for waiver of inadmissibility); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010) (court retains jurisdiction to determine its jurisdiction, and thus has jurisdiction to determine whether an offense is an aggravated felony); Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010) (court has jurisdiction to determine whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions); Prakash v. Holder, 579 F.3d 1033, 1035 (9th Cir. 2009) (court has jurisdiction to determine as a matter of law whether a conviction constitutes an aggravated felony).

“[J]urisdiction over ‘questions of law’ as defined in the Real ID Act includes not only ‘pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.” Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam); see also Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020) (holding that the phrase “questions of law” in 8 U.S.C. § 1252(a)(2)(D) includes the application of a legal standard to undisputed or established facts, sometimes referred to as mixed questions of law and fact); Chen v. Mukasey, 524 F.3d 1028, 1031 (9th Cir. 2008); Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (applying Ramadan to conclude that in assessing equitable tolling, “the due diligence question necessarily falls within Ramadan’s ambit as a mixed question of law and fact, requiring merely that we apply the legal standard for equitable tolling to established facts”).

With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), the court has jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief to the extent that a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. See Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (explaining the court has jurisdiction to review the denial of CAT relief when petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims); Pechenkov v. Holder, 705 F.3d 444, 448–49 (9th Cir. 2012) (the court lacked jurisdiction to review particularly serious crime determination where the petitioner asked only for a “re-weighing of the factors involved in that discretionary determination,” but holding court had jurisdiction over constitutional claims and questions of law raised regarding petitioner’s application to adjust status and the revocation of asylee status).

Although judicial review of a noncitizen’s factual challenges to a final order of removal is precluded where the noncitizen has committed a crime specified in § 1252(a)(2)(C), the law does not bar judicial review of a noncitizen’s factual challenges to a CAT order. See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 (2020) (holding that sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order). See also Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014) (“Though we generally lack jurisdiction to review orders of removal based on a conviction of a crime involving moral turpitude, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review denials of deferral of removal under CAT.”); Haile v. Holder, 658 F.3d 1122, 1130–31 (9th Cir. 2011); Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (“The jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive [the court] of jurisdiction over denials of deferral of removal under the CAT, which are always decisions on the merits.” (emphasis added)), overruled on other grounds by Maldonado v. Lynch, 786 F.3d 1155, 1162–64 (9th Cir. 2015) (en banc). Judicial review of factual challenges to CAT orders is highly deferential. See Nasrallah, 140 S. Ct. at 1692. “The standard of review is the substantial-evidence standard: The agency’s findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id.

2. Applicability to Former Transitional Rules Cases

In addition to restoring direct judicial review and eliminating habeas jurisdiction over final orders of removal in cases involving enumerated criminal offenses, § 106(d) of the REAL ID Act directs that a petition for review filed in a transitional rules case “shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252) [IIRIRA’s permanent rules].” REAL ID Act, Pub. L. No. 109-13, § 106(d), 119 Stat. 231, 311 (2005); see also Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005) (applying REAL ID Act and explaining that jurisdiction over transitional rules cases is now governed by 8 U.S.C. § 1252 rather than 8 U.S.C. § 1105(a)). Accordingly, the restoration of direct judicial review over cases involving enumerated offenses applies to both transitional rules and permanent rules cases.

3. Contraction of Habeas Jurisdiction

In addition to expanding the scope of judicial review for noncitizens convicted of certain enumerated crimes, the REAL ID Act also “makes the circuit courts the ‘sole’ judicial body able to review challenges to final orders of deportation, exclusion, or removal.” Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005). “To accomplish this streamlined judicial review, the Act eliminated habeas jurisdiction, including jurisdiction under 28 U.S.C. § 2241, over final orders of deportation, exclusion, or removal.” Alvarez-Barajas, 418 F.3d at 1052. See also 8 U.S.C. § 1252(a)(5); Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (“the REAL ID Act precludes aliens … from seeking habeas relief over final orders of removal in district courts.”); Momeni v. Chertoff, 521 F.3d 1094, 1095–96 (9th Cir. 2008) (district court lacked habeas jurisdiction over petition filed after effective date of REAL ID Act).

The REAL ID Act required the district courts to transfer to the appropriate court of appeals all habeas petitions challenging final orders of removal, deportation or exclusion that were pending before the district court on the effective date of the REAL ID Act (May 11, 2005). See REAL ID Act, Pub. L. No. 109-13, § 106(b), 119 Stat. 231, 310–11 (2005); see also Alvarez-Barajas, 418 F.3d at 1052. Although the REAL ID Act did not address appeals of the denial of habeas relief already pending in the court of appeals on the effective date of the Act, this court has held that such petitions shall be treated as timely filed petitions for review. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th Cir. 2005); Alvarez-Barajas, 418 F.3d at 1052–53; see also Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir. 2007) (holding that “a habeas petition is ‘pending’ in the district court within the meaning of [REAL ID Act]’s transfer provision when the notice of appeal was not filed at the time [REAL ID Act] was enacted, but was filed within the sixty day limitations period for filing a timely appeal of a habeas petition under Federal Rules of Appellate Procedure 4(a)(1)(B)”); cf. Singh v. Mukasey, 533 F.3d 1103, 1109 (9th Cir. 2008) (holding that noncitizens who lacked opportunity to file petitions for review prior to the enactment of the REAL ID Act had a grace period of 30 days from the Act’s effective date in which to seek review).

[T]he REAL ID Act was not intended to “preclude habeas review over challenges to detention that are independent of challenges to removal orders.” … Accordingly, the general rule is that “[e]ven post-[REAL ID Act], aliens may continue to bring collateral legal challenges to the Attorney General’s detention authority ... through a petition for habeas corpus.”

Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) (citations omitted). “By its terms, the jurisdiction-stripping provision does not apply to federal habeas corpus petitions that do not involve final orders of removal.” Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) (“[I]n cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.”). See also Lopez-Marroquin v. Barr, 955 F.3d 759 (9th Cir. 2020) (order) (stating that “district courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to immigration detention that are sufficiently independent of the merits of the removal order” (citing Singh, 638 F.3d at 1211–12)); Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (en banc) (“The REAL ID Act can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction.”).

Cross-reference: Jurisdiction over Immigration Petitions, Limitations on Judicial Review Based on Criminal Offenses.

II. CRIMINAL CONVICTIONS AS GROUNDS FOR INADMISSIBILITY AND REMOVABILITY

A. Distinguishing between Inadmissibility and Removability

[There are] two distinct concepts in our immigration law—inadmissibility and removability. “Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted.” Judulang v. Holder, [565 U.S. 42, 45] (2011). “An inadmissible alien is one who was not admitted legally to the United States and is removable under § 1182, whereas a deportable alien is in the United States lawfully and is removable under § 1227.” Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1055 (9th Cir. 2010).

Nguyen v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018), abrogated on other grounds by Barton v. Barr, 140 S. Ct. 1442 (2020). See also Sanchez-Ruano v. Garland, 8 F.4th 965, 968 (9th Cir. 2021) (“Aliens who have not been admitted legally and commit certain crimes in the United States are inadmissible. … Aliens who have entered the United States lawfully and have committed certain crimes are deportable.”); Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1055 (9th Cir. 2010) (same). Note “the grounds for inadmissibility and deportability do not perfectly match, as some conduct and offenses can render a person inadmissible but not deportable, and vice versa.” Nguyen, 901 F.3d at 1096. Furthermore, “admission to ‘committing acts which constitute the essential elements of’ a specified offense can make an applicant inadmissible, while, in most cases, a conviction is required to make a noncitizen deportable for commission of a crime.” Id. at 1097 (comparing 8 U.S.C. § 1182(a)(2)(A)(i), with 8 U.S.C. § 1227(a)(2)(A)).

B. Differing Burdens of Proof

When analyzing an immigration case with criminal issues, it is important to determine whether the crime is being used to charge the noncitizen as inadmissible, removable, or ineligible for relief from removal. The posture of the case generally determines who bears the burden of proving the existence and nature of the conviction. When a noncitizen is charged as removable for a criminal conviction, it is the government’s burden of proving by clear and convincing evidence that the noncitizen is removable. See 8 U.S.C. § 1229a(c)(3); Alfred v. Garland, 13 F.4th 980, 985 (9th Cir. 2021) (“DHS bears the burden of proving removability by clear and convincing evidence.”); Vazquez Romero v. Garland, 999 F.3d 656, 659 (9th Cir. 2021) (“[I]f the alien has already been lawfully admitted to the United States, the burden shifts to the government, which must establish by clear and convincing evidence that the alien is deportable.”); Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010) (“The government bears the burden of proving by ‘clear, unequivocal, and convincing evidence that the facts alleged as grounds for [removability] are true.’” (quoting Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989)); Retuta v. Holder, 591 F.3d 1181, 1184 (9th Cir. 2010) (“The government bears the burden of proving by clear, unequivocal, and convincing evidence that the alien is removable.”); Altamirano v. Gonzales, 427 F.3d 586, 590–91 (9th Cir. 2005). On the other hand, a noncitizen who is an “applicant for admission” bears the burden of proving that he is “clearly and beyond a doubt entitled to be admitted and is not inadmissible under [8 U.S.C. § 1182].” See 8 U.S.C. § 1229a(c)(2); Pereida v. Wilkinson, 141 S. Ct. 754, 761 (2021) (“[T]he INA often requires an alien applying for admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible.” … As part of this showing, an alien must demonstrate that he has not committed a crime involving moral turpitude.”); Romero v. Garland, 7 F.4th 838, 840 (9th Cir. 2021) (per curiam); Vazquez Romero, 999 F.3d at 659 (“[A]n alien who is an applicant for admission has the burden of proving that he is clearly and beyond doubt entitled to be admitted and is not inadmissible under § 1182.” (internal quotation marks and citation omitted)); Altamirano, 427 F.3d at 590–91; see also Kepilino v. Gonzales, 454 F.3d 1057, 1059–60 (9th Cir. 2006) (discussing shifting burden of production in the admission context).

C. Admissions

When a crime is charged as a ground of inadmissibility rather than deportability, a noncitizen may not always have to be convicted of the crime, but may only need to admit the essential elements of the crime. Compare 8 U.S.C. § 1182(a)(2)(A)(i) (ground of inadmissibility for any noncitizen who is convicted of or admits committing the essential acts of a crime involving moral turpitude) with 8 U.S.C. § 1227(a)(2)(A)(i) (ground of deportability for a noncitizen convicted of a crime involving moral turpitude). See also Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010) (“Thus, under 8 U.S.C. § 1182(a)(2)(A)(i)(II), admissions made by an alien to the IJ, enforcement officials, and third parties, apart from any conviction, may be considered to determine an alien’s admissibility when considering the question of adjustment of status.”). Admissions of controlled substances offenses may also be used to bar a noncitizen’s entry. See 8 U.S.C. § 1182(a)(2)(A)(i)(II); Pazcoguin v. Radcliffe, 292 F.3d 1209, 1218 (9th Cir. 2002) (applicant was inadmissible because he admitted prior use of marijuana in the Philippines, which constituted the essential elements of a violation of a foreign state’s law relating to a controlled substance).

“[A]dmissions by an alien to facts alleged in the [notice to appear], and concessions concerning matters of law, made in the 8 C.F.R. § 1240.10(c) ‘pleading stage’ of removal proceedings may be relied upon by an IJ.” Perez-Mejia v. Holder, 663 F.3d 403, 410 (9th Cir. 2011) (as amended).

D. What Constitutes a Conviction?

A conviction is defined as:

a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where –

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A); see also Bogle v. Garland, 21 F.4th 637, 645 (9th Cir. 2021) (holding that conditional discharge of noncitizen’s state marijuana charge, based on conditional guilty plea, was a potentially removable conviction); Diaz-Quirazco v. Barr, 931 F.3d 830, 843–44 (9th Cir. 2019) (discussing what constitutes a conviction and published BIA opinions setting forth the agency’s interpretation of what proceedings amount to a “conviction”); Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016) (“The federal definition of conviction where adjudication of guilt has been withheld includes aliens who have entered pleas of nolo contendere and ‘the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.’”); Retuta v. Holder, 591 F.3d 1181, 1185–86 (9th Cir. 2010); Murillo-Espinoza v. INS, 261 F.3d 771, 773–74 (9th Cir. 2001). The court has deferred to the BIA’s interpretation “that § 1101(a)(48)(A) does not require that the underlying offense be labeled a crime as long as the proceedings are ‘criminal in nature’ and contain ‘constitutional safeguards normally attendant upon a criminal adjudication.’” Diaz-Quirazco, 931 F.3d at 835, 843–46 (holding that petitioner’s violation of a protection order rendered him convicted of a removable offense).

An offense committed while a noncitizen is a juvenile qualifies as a conviction if the noncitizen is tried as an adult. See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 927 (9th Cir. 2007). See also Rangel-Zuazo v. Holder, 678 F.3d 967, 968–69 (9th Cir. 2012) (per curiam) (discussing the term “conviction” and reiterating that “where a juvenile offender is charged and convicted as an adult under state law, the offender has a ‘conviction’ for purposes of the INA”).

Note that 8 U.S.C. “§ 1101 (a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.” Planes v. Holder, 652 F.3d 991 (9th Cir. 2011).

1. Final, Reversed and Vacated Convictions

“A criminal conviction may not be considered by an IJ until it is final.” Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993) (pre-IIRIRA), superseded by statute as stated in Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011). A conviction is final for immigration purposes “[o]nce an alien has been convicted by a court of competent jurisdiction and exhausted the direct appeals to which he is entitled.” Grageda, 12 F.3d at 921 (internal quotation marks omitted). “A conviction subject to collateral attack or other modification is still final.” Id. (rejecting petitioner’s claim that his conviction was not final because he had a pending petition for writ of error coram nobis). See also Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011) (holding that “§ 1101 (a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.”).

A conviction overturned for substantive, non-immigration reasons may not be used as the basis for removability. See Nath v. Gonzales, 467 F.3d 1185, 1187–89 (9th Cir. 2006) (“[A] conviction vacated because of a procedural or substantive defect is not considered a conviction for immigration purposes and cannot serve as the basis for removability.” (internal quotation marks and citation omitted)); see also Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020) (as amended); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir. 2010) (“A conviction vacated for reasons ‘unrelated to the merits of the underlying criminal proceedings’ may be used as a conviction in removal proceedings whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not.” (citation omitted)); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107–08 (9th Cir. 2006) (remanding for consideration of whether conviction was vacated on the merits or because of immigration consequences); Wiedersperg v. INS, 896 F.2d 1179, 1182–83 (9th Cir. 1990) (noncitizen was entitled to reopen proceedings where state conviction was vacated).

The government bears the burden of proving whether a state court reversed or vacated a prior conviction for reasons other than the merits. Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) (“[T]he inquiry must focus on the state court’s rationale for vacating the conviction, and the burden is on the government to prove that it was vacated solely for rehabilitative reasons or reasons related to his immigration status.” (internal quotation marks and citation omitted)); Nath, 467 F.3d at 1189; Cardoso-Tlaseca, 460 F.3d at 1107 n.3 (“[F]or the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove with clear, unequivocal and convincing evidence that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e. to avoid adverse immigration consequences.” (internal quotation marks and citation omitted)).

2. Expunged (Recalled or Reclassified) Convictions

a. Expungement Generally Does Not Eliminate Immigration Consequences of Conviction

Following codification of the statutory definition of conviction in 8 U.S.C. § 1101(a)(48)(A), this court has deferred to the BIA’s interpretation of the statute as “preclud[ing] the recognition of subsequent state rehabilitative expungements of convictions.” Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001) (expunged theft conviction still qualified as an aggravated felony). “[F]ederal immigration law does not recognize a state’s policy decision to expunge (or recall or reclassify) a valid state conviction.” Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). For immigration purposes, [therefore,] a person continues to stand convicted of an offense notwithstanding a later expungement under a state’s rehabilitative law.” Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) (expungement of a misdemeanor California conviction for carrying a concealed weapon did not eliminate the immigration consequences of the conviction); see also Marinelarena v. Garland, 6 F.4th 975, 979 (9th Cir. 2021) (concluding state conviction expunged under California law due to fulfillment of conditions of probation or discharge prior to termination remains a “conviction” for federal immigration purposes); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078–79 (9th Cir. 2013) (notwithstanding expungement of prior felony offense for possession of marijuana for sale, noncitizen was ineligible for adjustment of status); Ramirez-Altamirano v. Holder, 563 F.3d 800, 805–06 (9th Cir. 2009), overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc); de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1024 (9th Cir. 2007); Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1067 (9th Cir. 2003) (expunged conviction for lewdness with a child qualified as an aggravated felony).

“A conviction vacated for reasons ‘unrelated to the merits of the underlying criminal proceedings’ may be used as a conviction in removal proceedings whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not.” Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir. 2010) (quoting Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006)).

Prado, 949 F.3d at 441 (holding that reclassification of felony conviction for possession of marijuana as misdemeanor for rehabilitative, rather than substantive purposes, did not affect removability or eligibility for relief).

See also Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1089 (9th Cir. 2021) (as amended) (holding “that California’s amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days for purposes of state law, cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i)).

b. Exception for Simple Drug Possession Offenses

In general, for convictions occurring prior to July 14, 2011, see Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (en banc), the government may not remove a noncitizen on the basis of a simple drug possession conviction that has been expunged under a state rehabilitative statute and would satisfy the requirements of the Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607. See Vega-Anguiano v. Barr, 982 F.3d 542, 546 (9th Cir. 2020) (as amended) (“For convictions occurring prior to July 14, 2011, the government may not remove an alien on the basis of a simple drug possession conviction, if the conviction has been expunged under a state rehabilitative statute and the alien has satisfied the requirements of the Federal First Offender Act.”); Lujan-Armendariz v. INS, 222 F.3d 728, 749–50 (9th Cir. 2000), overruled by Nunez-Reyes, 646 F.3d at 690; see also Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018) (for convictions that occurred prior to the court’s holding in Nunez-Reyes, a person generally continues to stand convicted of an offense under state law notwithstanding a later expungement, unless the requirements of the FFOA are satisfied); Rice v. Holder, 597 F.3d 952, 956–57 (9th Cir. 2010) (noncitizen’s conviction in state court for using or being under the influence of a controlled substance was eligible for the same immigration treatment as those convicted of drug possession under FFOA), overruled by Nunez-Reyes, 646 F.3d at 695; Romero v. Holder, 568 F.3d 1054, 1059–60 (9th Cir. 2009), overruled by Nunez-Reyes, 646 F.3d at 690; Ramirez-Altamirano v. Holder, 563 F.3d 800, 806–08 (9th Cir. 2009), overruled by Nunez-Reyes, 646 F.3d at 690 (noncitizen’s conviction for possession of drug paraphernalia under California law qualified for similar treatment under Lujan-Armendariz rationale); de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1024–25 (9th Cir. 2007); Dillingham v. INS, 267 F.3d 996, 1006–07 (9th Cir. 2001), overruled by Nunez-Reyes, 646 F.3d at 690 (reversing BIA’s refusal to recognize foreign expungement of simple possession that would have qualified for federal first offender treatment). The noncitizen’s offense had to fall within the scope of the FFOA, and not just a state rehabilitative statute, for the noncitizen to avoid immigration consequences. See Dillingham, 267 F.3d at 1006–07; Paredes-Urrestarazu v. INS, 36 F.3d 801, 815 (9th Cir. 1994); see also Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983–84 (9th Cir. 2006). Further, the federal first offender exception does not apply to convicted noncitizens who are eligible for, but have not yet received, expungement of the conviction. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1291 (9th Cir. 2004) (removal order based on conviction that had not yet been expunged did not violate equal protection). “FFOA relief is unavailable when an offender has violated a condition of probation.” Estrada v. Holder, 560 F.3d 1039, 1041 (9th Cir. 2009), overruled in part as recognized by Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015).

In Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1219 (9th Cir. 2016), the court held that “two counts amount[ed] to a single ‘offense’ under the FFOA because they arose out of a single event, composed a single criminal case, and triggered a single, undivided sentence.” As such, although the petitioner “was charged with possession of two different drugs, that alone does not change [the petitioner’s] status as a first-time drug offender under the FFOA.” Id. (because convictions occurred prior to 2011, Nunez-Reyes did not bar Villavicencio from relief).

“[T]he FFOA only applies to first time drug offenders convicted of simple possession of a controlled substance.” Lopez, 901 F.3d at 1075 (“Because Lopez was convicted of possession for sale of a controlled substance, the exception does not apply.”).

The court has held that persons convicted for possession of drug paraphernalia may be eligible for the same immigration treatment as those convicted under the FFOA. See Ramirez-Altamirano, 563 F.3d at 808–09 (pre-Nunez-Reyes, applying rule in Lujan-Armendariz) (petitioner convicted of California Health and Safety Code § 11364).

The court held in Romero, 568 F.3d at 1062 (pre-Nunez-Reyes, applying rule in Lujan-Armendariz), that the “facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an ‘admission’ of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. § 1101(f)(3).”

In Nunez-Reyes, the court overruled Lujan-Armendariz, holding that the constitutional guarantee of equal protection does not require treating an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under FFOA. Nunez-Reyes, 646 F.3d at 690. Accordingly, all cases that followed the rule in Lujan-Armendariz, were overruled, including Romero, 568 F.3d at 1059–60, Ramirez-Altamirano, 563 F.3d at 806, Dillingham v. INS, 267 F.3d 996, 1006–07 (9th Cir. 2001), and Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 n.4 (9th Cir. 2000). The new rule announced by Nunez-Reyes only applies prospectively. Nunez-Reyes, 646 F.3d at 690–94 (holding that Lujan-Armendariz continues to apply to those noncitizens convicted before the publication date of Nunez-Reyes, July 14, 2011). See also Lopez, 901 F.3d at 1075 n.2 (applying Lujan-Armendariz, where conviction was before the publication date of Nunez-Reyes); Villavicencio-Rojas, 811 F.3d at 1218 (“The parties agree that Nunez-Reyes does not bar Villavicencio from relief, as his convictions occurred before 2011.”).

The “en banc decision in Nunez-Reyes focused on the equal protection issue, and ‘[the court] assume[d], without deciding, that the statutory term “‘conviction’” includes expunged state convictions.” Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016) (citation omitted). In Reyes, the court held that “a state conviction expunged under state law is still a conviction for purposes of eligibility for cancellation of removal and adjustment of status. And even though incarceration is not required, the federal definition of conviction is satisfied regardless of the rehabilitative purpose of probation, where the noncitizen was punished or his liberty was restrained by the terms of his probation. 834 F.3d at 1108.

E. Definition of Sentence

Under the INA, “[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(a)(48)(B). See also Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132–33 (9th Cir. 2016) (“‘Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.’” (quoting 8 U.S.C. § 1101(a)(48)(B))).

In the criminal context, the court has held that the sentence imposed may be the term later imposed after revocation of probation. See United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (defendant in unlawful reentry case was convicted of aggravated felony because even though he was initially granted probation, probation was revoked and he was sentenced to two years’ imprisonment).

1. One-Year Sentences

A sentence “for which the term of imprisonment [is] at least one year” means the actual sentence imposed by the court. Alberto-Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000) (rejecting government’s contention that the relevant term of imprisonment is the potential sentence that the judge could have imposed); see also United States v. Pimentel-Flores, 339 F.3d 959, 962 (9th Cir. 2003).

The phrase “at least one year” refers to a sentence of 365 days or more. Matsuk v. INS, 247 F.3d 999, 1001–02 (9th Cir. 2001) (rejecting petitioner’s contention that the phrase “should be read to mean a ‘natural or lunar’ year, which is composed of 365 days and some hours”), overruled on other grounds by Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc); Bayudan v. Ashcroft, 298 F.3d 799, 800 (9th Cir. 2002) (order) (setting aside previous order dismissing petition for lack of jurisdiction because 364-day sentence for manslaughter was not a crime of violence constituting an aggravated felony). See also Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132–33 (9th Cir. 2016) (“[S]entence of 365 days equates to imprisonment of ‘at least one year’”); United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002).

2. Recidivist Enhancements

Recidivist enhancements are not considered when determining the nature of an offense, but may be considered when calculating the amount of time served on account of an offense. In United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4, the defendant received a two-year sentence for his conviction for petty theft with a prior. This court held that the conviction was not an aggravated felony under federal sentencing law because the maximum possible sentence for petty theft in California, without the recidivist enhancement, was six months. See also Rusz v. Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004) (petitioner was not convicted of an aggravated felony which would deprive the court of jurisdiction because his California conviction of petty theft with a prior was not a crime for which a sentence of one year or longer could be imposed). However, this court held in Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1129 (9th Cir. 2007), implied overruling on other grounds recognized by Cardenas-Delgado v. Holder, 720 F.3d 1111 (9th Cir. 2013), that for purposes of determining eligibility for relief under former § 212(c), it could consider recidivist enhancements when calculating the amount of time served. Saravia-Paguada explained that Corona-Sanchez and Rusz stand for the proposition that recidivism should not inform the nature of an offense, but may be considered when determining the actual time served. See id. at 1127–29.

Note that in United States v. Rodriguez, 553 U.S. 377 (2008), the Supreme Court reversed the Ninth Circuit’s decision in United States v. Rodriguez, 464 F.3d 1072 (9th Cir. 2006), which applied the rule in Corona-Sanchez holding that the maximum term of imprisonment under the Armed Career Criminal Act must be determined without taking recidivist enhancements into account. In reversing the Ninth Circuit decision, the Supreme Court held that when determining the “maximum term of imprisonment” it is necessary to refer to the applicable recidivist enhancements for prior offenses. See Rodriguez, 553 U.S. at 382–84; see also United States v. Rivera, 658 F.3d 1073, 1076 (9th Cir. 2011) (“because the recidivist sentence does relate to the commission of the repeat offense and is clearly part of the sentence “prescribed by law,” a recidivist sentence may be considered in determining whether a prior conviction qualifies as a predicate offense”), overruled in part as stated in Lopez-Valencia v. Lynch, 798 F.3d 863, 872 n.6 (9th Cir. 2015).

3. Misdemeanors

In Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that a state drug offense may only be an aggravated felony if it proscribes conduct punishable as a felony under federal law. However, an offense designated by the state as a misdemeanor, but by federal law as a felony, may qualify as an aggravated felony. See, e.g., United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005); United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002); see also Habibi v. Holder, 673 F.3d 1082, 1088 (9th Cir. 2011); United States v. Rivera, 658 F.3d 1073, 1075–76 (9th Cir. 2011) (holding that defendant’s state felony petty theft conviction qualified as an aggravated felony, although under California law conviction for petty theft was misdemeanor), overruled in part as stated in Lopez-Valencia v. Lynch, 798 F.3d 863, 872 n.6 (9th Cir. 2015). A state conviction for misdemeanor sexual battery has been held to be a crime involving moral turpitude. See Gonzales-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013).

In Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1089 (9th Cir. 2021), the court held that “that California’s amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days for purposes of state law, cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).”

4. Wobblers

An “offense [that] can result in a range of punishments ... is referred to as a ‘wobbler’ statute, providing for either a misdemeanor or a felony conviction.” Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 (9th Cir. 2003), overruled on other grounds by Ceron v. Holder, 747 F.3d 773, 777 (9th Cir. 2014) (en banc); see also Arrellano Hernandez v. Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016); Ceron, 747 F.3d at 777 (Certain statutes “are known in California as ‘wobblers’ because the state court can treat a conviction under [the statute] either as a felony or as a misdemeanor.”); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1075 (9th Cir. 2013); Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004), overruled on other grounds by Ceron, 747 F.3d at 777–78; LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). For wobbler offenses, “it is clear that a state court’s designation of a criminal offense [as a misdemeanor or a felony] is binding on the BIA for purposes of determining whether there has been a conviction under the INA.” Garcia-Lopez, 334 F.3d 840, 844 (9th Cir. 2003), overruled on other grounds by Ceron, 747 F.3d at 777–78.

“Under California law, a ‘wobbler’ is presumptively a felony and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor.” [Ewing v. California, 538 U.S. 11, 16 (2003)]. An offense is “deemed a felony” when a defendant is convicted and “granted probation without the imposition of a sentence.” People v. Feyrer, 48 Cal. 4th 426, 106 Cal. Rptr. 3d 518, 226 P.3d 998, 1007 (2010), superseded by statute on another ground as stated in People v. Park, 56 Cal.4th 782, 156 Cal.Rptr.3d 307, 299 P.3d 1263, 1266 n.4 (2013). The offense remains a felony unless the sentencing court subsequently reduces it to a misdemeanor.

Arellano Hernandez, 831 F.3d at 1132.

In Ceron, the en banc court explained that in California, California Penal Code Section 19 “specifies a general statutory maximum penalty of six months’ imprisonment in the county jail for all misdemeanors, ‘[elxcept in cases where a different punishment is prescribed by any law of this state.’” Ceron, 747 F.3d at 778 (quoting Cal. Penal Code § 19). When a different maximum penalty is prescribed by statute, the six-month default maximum does not apply. The en banc court in Ceron explained that in both Garcia-Lopez and Ferreira the court erroneously applied the six-month maximum. Accordingly, the en banc court overruled that aspect of those cases.

F. Overlap with Other Immigration and Criminal Sentencing Areas of Law

Some grounds of inadmissibility do not require that a noncitizen be convicted of or admit a crime, but rather require proof of undesirable behavior. Although not considered here, these grounds should be kept in mind as they may overlap with the grounds discussed in this section. See, e.g., 8 U.S.C. § 1182(a)(2)(D)(i) (prostitution and commercialized vice); 8 U.S.C. § 1182(a)(6)(E)(i) (alien smuggling); 8 U.S.C. § 1182(a)(2)(E) (noncitizens asserting immunity from prosecution); 8 U.S.C. § 1182(a)(2)(H) (trafficking in persons); 8 U.S.C. § 1182(a)(2)(I) (money laundering).

The criminal sentencing guidelines also are similar to certain immigration provisions, and thus cases interpreting them may be relevant. U.S.S.G. § 2L1.2 defines “aggravated felony” with specific reference to 8 U.S.C. § 1101(a)(43) (pursuant to § 2L1.2 certain drug trafficking offenses, crimes of violence, aggravated felonies, etc. may be used to enhance a noncitizen’s sentence for violating 8 U.S.C. § 1326), and should be relevant to immigration cases considering the same statute. In some cases, the court has found criminal sentencing cases controlling in the immigration context. For example, this court has held that for purposes of determining whether a crime constituted aggravated felony sexual abuse of a minor, prior precedent in a criminal case was controlling. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066–67 (9th Cir. 2003) (citing United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999)); Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002) (per curiam) (applying construction of “crime of violence” from sentencing case); Castro-Baez v. Reno, 217 F.3d 1057, 1058–59 (9th Cir. 2000) (applying definition of rape adopted in a criminal case); Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (applying the uniform definition of “burglary” in the Career Criminals Amendment Act).

In Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that the same definition of aggravated felony drug offense should be used in both the criminal sentencing and immigration contexts, rejecting the Ninth Circuit’s prior cases which defined the term differently in the two contexts. The Court held that in both contexts, a state offense could only be an aggravated felony if it proscribes conduct punishable as a felony under federal law.

U.S.S.G. § 2L1.2 also has provisions regarding crimes of violence, firearms offenses, and drug trafficking offenses. Cases interpreting these statutes may also be useful in analyzing criminal immigration cases, but these terms are defined differently in the immigration statute, and thus cases interpreting them are not controlling. Compare Valencia v. Gonzales, 439 F.3d 1046, 1053 (9th Cir. 2006) (statutory rape is not a crime of violence under the immigration statute), with United States v. Asberry, 394 F.3d 712, 717–18 (9th Cir. 2005) (holding that statutory rape is a crime of violence under U.S.S.G. § 4B1.2 ). See also Cisneros-Perez v. Gonzales, 465 F.3d 386, 392 (9th Cir. 2006) (holding that the modified categorical approach applies to prior crimes of domestic violence and distinguishing United States v. Belless, 338 F.3d 1063, 1065–67 (9th Cir. 2003), abrogated on other grounds by United States v. Castleman, 572 U.S. 157 (2014), which held otherwise). But see Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (discussing rule of lenity and stating that the statutory definition of crime of violence must be interpreted “consistently, whether we encounter its application in a criminal or noncriminal context”).

Cross-reference: Aggravated Felonies, Offenses Defined as Aggravated Felonies, Illicit Trafficking in Controlled Substances, or State Drug Offenses.

III. METHOD OF ANALYSIS

A. Standard of Review

This court reviews de novo whether a state or federal conviction is an offense with immigration consequences. See, e.g., Valdez v. Garland, 28 F.4th 72, 76 (9th Cir. 2022) (reviewing de novo whether a state conviction was an aggravated felony); Walcott v. Garland, 21 F.4th 590, 593 (9th Cir. 2021) (reviewing de novo whether a particular conviction under state law was a removable offense); Amaya v. Garland, 15 F.4th 976, 980 (9th Cir. 2021) (reviewing de novo whether a criminal conviction was a crime of violence and therefore an aggravated felony rendering noncitizen removable); Lopez-Marroquin v. Garland, 9 F.4th 1067, 1070 (9th Cir. 2021) (reviewing de novo whether a particular offense was an aggravated felony under the INA); Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016) (“We review de novo whether a particular conviction under state law is a removable offense.”); Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015) (“We review de novo the BIA’s determination that a conviction under California Penal Code § 192(a) is a crime of violence.”); Roman-Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014) (reviewing de novo whether offense constitutes an aggravated felony).

The court reviews for abuse of discretion whether a crime is particularly serious, rendering a noncitizen ineligible for withholding of removal. See Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1230 (9th Cir. 2021); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015); Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th Cir. 2013), abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018); Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per curiam) (“[D]etermining whether a crime is particularly serious is an inherently discretionary decision, and we will review such decisions for abuse of discretion.”). “[R]eview is limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach [its] conclusion.” Avendano-Hernandez, 800 F.3d at 1077 (internal quotation marks and citation omitted). See also Alcaraz-Enriquez, 19 F.4th at 1230–31; Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020).

The court does “not defer to an agency’s interpretations of state law or provisions of the federal criminal code.” Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017). See also Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1068 (9th Cir. 2020) (“We do not defer to the BIA’s interpretations of state law ... and instead must review de novo whether the specific crime of conviction meets the INA’s definition of an aggravated felony.” (internal quotation marks and citation omitted)).

The court reviews de novo the agency’s determination of the elements of a statute of conviction. See Barbosa v. Barr, 926 F.3d 1053, 1057 (9th Cir. 2019) (as amended) (explaining the court reviews this step de novo because the BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal statutes); Vasquez-Valle v. Sessions, 899 F.3d 834, 838 (9th Cir. 2018); Escobar v. Lynch, 846 F.3d 1019, 1023 (9th Cir. 2017); Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010).

Deference may be owed to the BIA’s interpretation of the statutes and regulations it is charged with administering, including the INA. See Gomez-Sanchez v. Sessions, 892 F.3d 985, 990 (9th Cir. 2018); Escobar, 846 F.3d at 1023; Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010); Fregozo v. Holder, 576 F.3d 1030, 1034 (9th Cir. 2009).

B. Categorical Approach

“The [Supreme] Court first discussed the categorical approach in the criminal context, but it has since migrated into … INA cases.” Pereida v. Wilkinson, 141 S. Ct. 754, 762 (2021). In Pereida, the Court explained that when applying the categorical approach, “a court does not consider the facts of an individual’s crime as he actually committed it. Instead, a court asks only whether an individual’s crime of conviction necessarily—or categorically—triggers a particular consequence under federal law.” 141 S. Ct. at 762.

To determine whether a conviction categorically constitutes a predicate offense for immigration purposes, the court applies the two-step approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990) and Shepard v. United States, 544 U.S. 13, 15 (2005). See Silva v. Garland, 993 F.3d 705, 712 (9th Cir. 2021) (“To determine whether an alien’s crime of conviction subjects the alien to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), we apply the categorical approach set forth in Taylor v. United States, [495 U.S. 575 (1990)]”); Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir. 2011) (as amended); see also Barbosa v. Barr, 926 F.3d 1053, 1057 (9th Cir. 2019) (as amended) (applying the process mandated by Descamps v. United States, 570 U.S. 254 (2013) to evaluate whether a conviction under Oregon Revised Statutes § 164.395 was categorically a crime involving moral turpitude); Myers v. Sessions, 904 F.3d 1101, 1107 (9th Cir. 2018) (explaining categorical approach as set forth in Taylor and Descamps v. United States, 570 U.S. 254 (2013)); Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (as amended); Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (“In determining whether the conduct proscribed by the statute involves moral turpitude, we apply the categorical approach of Taylor v. United States, 495 U.S. 575, 598–602 (1990), comparing the elements of the state offense to those of the generic CIMT to determine if there is a categorical match.”); Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013); Olivas-Motta v. Holder, 746 F.3d 907, 910 (9th Cir. 2013); Robles-Urrea v. Holder, 678 F.3d 702, 707 (9th Cir. 2012); Parrilla v. Gonzales, 414 F.3d 1038, 1042 (9th Cir. 2005).

The categorical approach is best understood as a task of statutory matching—we ask whether the statutory elements of the crime of conviction match the elements of the generic offense which serves as the basis for removal. See Mathis v. United States, [579 U.S. 500, 504 (2016)]. If the elements of the crime of conviction match (or are narrower than) the elements of the generic offense, then the analysis can stop: the crime of conviction qualifies as a predicate for removal. Id.

Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020). See also Amaya v. Garland, 15 F.4th 976, 980 (9th Cir. 2021); Barrera-Lima v. Sessions, 901 F.3d 1108, 1115 (9th Cir. 2018) (after identifying requisite elements for conviction under the statute, “apply the categorical approach to determine whether the elements of conviction match the generic definition of a crime involving moral turpitude”); Hernandez-Cruz, 651 F.3d at 1100 (comparing Hernandez-Cruz’s convictions under California Penal Code § 459 to the generic crime, attempted theft). “[W]here a statute ‘has both criminal and noncriminal applications,’ the statute should be consistently interpreted in both criminal and noncriminal, i.e., immigration, applications.” Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014). “In the immigration context, [the categorical] approach … generally applies in determining whether an alien is removable in the first instance or whether he is statutorily barred from various forms of relief.” Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015).

“Because Congress predicated deportation ‘on convictions, not conduct,’ the [categorical] approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior.” Mellouli v. Lynch, 575 U.S. 798, 805 (2015). See also Pereida, 141 S. Ct. at 762 (“The categorical approach is required, … , because the language found in statutes like the INA provision before us don’t task courts with examining whether an individual’s actions meet a federal standard like ‘moral turpitude,’ but only whether the individual ‘has … been convicted of an offense’ that does so.”); Villavicencio, 904 F.3d at 664 (explaining that the court only examines the statutory definition of the crime to determine whether the state statute of conviction renders a noncitizen removable under the statute of removal, without looking to the actual conduct underlying the petitioner’s offense). “[The court] ignore[s] the actual facts of the particular prior conviction and instead compare[s] the elements of the state statute of conviction to the federal generic crime to determine whether the conduct proscribed by the state statute is broader than the generic federal definition.” Cortes-Maldonado v. Barr, 978 F.3d 643, 647 (9th Cir. 2020) (internal quotation marks and citation omitted); see also Ramirez v. Lynch, 810 F.3d 1127, 1130–31 (9th Cir. 2016) (“To assess whether a state conviction qualifies as an aggravated felony, we generally employ the ‘categorical approach’ to determine whether the state offense matches the ‘generic’ federal definition of the pertinent offense listed in the INA: here, a crime of violence under 18 U.S.C. § 16(a) or (b).”); Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (compare the elements of the state offense with those of the generic definition of a CIMT to determine if there is a categorical match); Murillo-Prado v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (per curiam) (“‘[The court] look[s] 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.’” (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013))). “By ‘generic,’ [the Court] mean[s] the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, 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].” Moncrieffe, 569 U.S. at 190 (citation omitted). “By focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law.” Mellouli, 575 U.S. at 806.

The court will “first make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the state statute] is broader than, and so does not categorically fall within, this generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003); see also Descamps v. United States, 570 U.S. 254, 257 (2013) (under the categorical approach “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.”); Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020) (as amended) (comparing the elements of the offense of the petitioner’s conviction with the elements of a generic offense); Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018) (compare the elements of the offense of conviction with the elements of the federal generic offense to see if they are a categorical match); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (“Under the categorical approach, we examine only the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal, … , without looking to the actual conduct underlying the petitioner’s offense.” (citation and internal quotation marks omitted)); Rodriguez-Castellon, 733 F.3d at 853; Robles-Urrea, 678 F.3d at 707; Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012); Hoang v. Holder, 641 F.3d 1157, 1159–60 (9th Cir. 2011); Tijani v. Holder, 628 F.3d 1071, 1075 (9th Cir. 2010).

“Under the Taylor categorical approach, this court must look to ‘the ordinary case’ that is prosecuted by the state, not some extreme hypothetical.” Rebilas v. Mukasey, 527 F.3d 783, 785 (9th Cir. 2008) (citation omitted); see also Dominguez, 975 F.3d at 734 (look to the offense as commonly understood). The court will examine “what types of conduct are ordinarily prosecuted … .” See Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (explaining that an offender ‘must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.’).” Rebilas, 527 F.3d at 785; see also Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000) (stating that the categorical approach is based only on the elements of the statute, and the court will not “look to the particular facts underlying the conviction”).

In applying the categorical approach, the court “presume[s] that the state conviction ‘rested upon ... the least of th[e] acts’ criminalized by the statute, and then … determine[s] whether that conduct would fall within the federal definition of the crime.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). See also Duenas-Alvarez, 549 U.S. at 193; Vasquez-Valle v. Sessions, 899 F.3d 834, 839 (9th Cir. 2018); Robles-Urrea, 678 F.3d at 707; Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007).

“[I]n conducting the categorical analysis, [the court does] not consider the availability of affirmative defenses; the fact that there may be an affirmative defense under the federal statute, but not under the state statute of conviction, does not mean that the state conviction does not fall categorically within the federal statute.” Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011), implied overruling on other grounds recognized by United States v. Aguilera-Rios, 769 F.3d 626, 634 (9th Cir. 2014).

Note the “categorical approach does not apply in assessing whether a noncitizen is ineligible for cancellation of removal under § 1229b(b)(1)(C) based on an offense of violating a protection order under § 1227(a)(2)(E)(ii).” Diaz-Quirazco v. Barr, 931 F.3d 830, 838 (9th Cir. 2019) (deferring to the BIA’s published decision in Matter of Medina-Jimenez, 27 I. & N. Dec. 399, 401 (BIA 2018)).

See also Amaya v. Garland, 15 F.4th 976, 980 (9th Cir. 2021) (“In the crime of violence context, we compare the state statute to 18 U.S.C. § 16(a), rather than a generic assault statute, and we will only find a categorical match if every violation of the statute necessarily involves violent force.”); Alfred v. Garland, 13 F.4th 980, 985 (9th Cir. 2021) (“In evaluating whether a state statute qualifies as an aggravated felony for removal purposes, this court must employ a categorical approach to determine whether the state offense is comparable to an offense listed in the INA.”); Villavicencio v. Sessions, 904 F.3d 658, 667 (9th Cir. 2018) (as amended) (concluding that petitioner was not removable under 8 U.S.C. § 1227(a)(2)(B)(i) and that N.R.S. §§ 199.480 and 454.351 are both overbroad and indivisible); Vasquez-Valle v. Sessions, 899 F.3d 834, 840–41 (9th Cir. 2018) (concluding that O.R.S. § 162.285 is overbroad because the minimum conduct it criminalizes is not necessarily fraudulent, base, vile, or depraved, and thus it is not a categorical match to a CIMT); Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1202 (9th Cir. 2018) (concluding that Washington conviction for third degree assault of a child was a categorical match for sexual abuse of a minor, an aggravated felony that bars the relief from removal); Sandoval v. Sessions, 866 F.3d 986, 993 (9th Cir. 2017) (as amended) (concluding that because Oregon’s definition of “delivery” includes solicitation, O.R.S. § 475.992(1)(a) is not a categorical match to a “drug trafficking crime,” and therefore, petitioner’s conviction for delivery of heroin did not qualify as an aggravated felony under the categorical approach); Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015) (conviction was categorically not generic theft offense); Garcia v. Lynch, 786 F.3d 789, 794 (9th Cir. 2015) (conviction under Cal. Penal Code § 487(a) is not categorically an aggravated felony because section 487(a) is doubly overbroad); Rosales Rivera v. Lynch, 816 F.3d 1064, 1074–75 (9th Cir. 2015) (Cal. Penal Code § 118 categorically is not a crime involving moral turpitude); Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267–68 (9th Cir. 2013) (conviction for misdemeanor sexual battery involved moral turpitude); Rohit, 670 F.3d at 1088–91 (holding that conviction under Cal. Penal Code § 647(b) constituted a conviction of a crime involving moral turpitude); Jimenez-Juarez v. Holder, 635 F.3d 1169, 1170–71 (9th Cir. 2011) (holding that conviction for child molestation in the third degree under Wash. Rev. Code § 9A.44.089 categorically constitutes a crime of child abuse within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i)); Covarrubias Teposte v. Holder, 632 F.3d 1049, 1052–56 (9th Cir. 2011) (determining that California conviction for shooting at an inhabited dwelling or vehicle was not categorically a crime of violence); Mendoza v. Holder, 623 F.3d 1299, 1302–04 (9th Cir. 2010) (applying categorical approach and determining that conviction for robbery under Cal. Penal Code § 211 was categorically a crime of moral turpitude); Hernandez-Aguilar v. Holder, 594 F.3d 1069, 1073 (9th Cir. 2010) (applying two-step test in Taylor analyzing whether Cal. Health & Safety Code § 11379(a) categorically qualified as a crime relating to a controlled substance); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012–16 (9th Cir. 2009) (sexual abuse of a minor not categorically an aggravated felony).

C. Modified Categorical Approach

“Only in the ‘narrow range of cases’ where an overbroad statute is divisible [does the court] proceed to the … ‘modified categorical approach.’” Lopez-Marroquin v. Garland, 9 F.4th 1067, 1071 (9th Cir. 2021) (citation omitted).

“If the state statute is divisible, and the full range of conduct in the state statute is not included in the federal offense, [the court] may use the modified categorical approach so long as one of the crimes included in the statute is a categorical match for the federal generic offense.” Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) (citing Descamps v. United States, 570 U.S. 254, 263 (2013)). See also Lopez-Marroquin v. Garland, 9 F.4th 1067, 1071 (9th Cir. 2021) (explaining that only in the narrow range of cases where an overbroad statute is divisible does the court use the modified categorical approach.); Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020) (“If the elements of the statute are overbroad, [the court] may continue on with the analysis if the criminal statute is, …, ‘divisible.’”); Altayar v. Barr, 947 F.3d 544, 549 (9th Cir. 2020); Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (as amended) (“In a narrow range of cases, when a state statute is broader than the elements of the federal offense, we may employ the modified categorical approach to determine if the state crime is a match for the federal offense.”); Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016) (“In a ‘narrow range of cases,’ when the statute at issue is divisible, we may employ a “modified categorical approach.”). “If a statute does not list alternative elements, but merely encompasses different means of committing an offense, the statute is indivisible and the modified categorical approach has no role to play.” Lopez-Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015) (internal quotation marks and citation omitted); see also Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020) (as amended); Sandoval v. Sessions, 866 F.3d 986, 994 (9th Cir. 2017) (as amended) (concluding the modified categorical approach could not be applied because O.R.S. § 475.992(1)(a) is indivisible with respect to whether an “attempt” is accomplished by solicitation); Chavez-Solis v. Lynch, 803 F.3d 1004, 1013 (9th Cir. 2015) (modified categorical approach could not apply where statute was indivisible).

A divisible statute is one that:

sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits ... courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

Descamps, 570 U.S. at 257; see also Lazo v. Wilkinson, 989 F.3d 705, 710 (9th Cir. 2021) (“Under the modified categorical approach, we must first consider whether § 11350 is divisible, meaning that it lists elements in the alternative, and thereby defines multiple crimes.” (internal quotation marks and citation omitted)); Syed, 969 F.3d at 1017 (“A divisible statute is one that lists elements in the alternative—thereby creating multiple, distinct crimes within a single statute.”); Dominguez, 975 F.3d at 734 (“A statute is divisible if it sets out elements of the offense in the alternative, effectively containing multiple possible offenses.”); Romero-Millan v. Barr, 958 F.3d 844, 847–48 (9th Cir. 2020); Altayar v. Barr, 947 F.3d 544, 549 (9th Cir. 2020) (“We apply the modified categorical approach ‘only if the statute is divisible,’ … , which is to say that the statute contains multiple, alternative sets of elements that define multiple, distinct crimes.” (citation omitted)); Ramirez, 810 F.3d at 1131 (“A divisible statute lists alternative sets of elements, in essence ‘several different crimes.’ [Descamps, 570 U.S. at 264]. ‘If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of.’ Id.”); Lopez-Valencia, 798 F.3d at 868 (explaining Descamps); Murillo-Prado v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (per curiam) (quoting Descamps). “‘[A] statute is divisible only if, inter alia, ‘it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of ‘elements,’ more than one combination of which could support a conviction.’” Vasquez-Valle, 899 F.3d at 842 (citations omitted).

“In applying the modified categorical approach, the evidence submitted by the government to prove a prior conviction in an immigration proceeding must meet a clear and convincing standard.” Murillo-Prado, 735 F.3d at 1157. See also Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th Cir. 2007) (“[T]he government has the burden to establish clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense.” (internal quotation marks and citations omitted)).

The Supreme Court has “described the modified categorical approach as requiring courts to ‘review ... record materials’ to determine which of the offenses in a divisible statute the defendant was convicted of committing.” Pereida v. Wilkinson, 141 S. Ct. 754, 764–65 (2021) (quoting Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)). As acknowledged by the Supreme Court, the modified categorical approach “calls on courts to consider ‘extra-statutory materials’ to ‘discover’ the defendant’s crime of conviction.” Pereida, 141 S. Ct. at 764–65. These “materials will not in every case speak plainly, and … any lingering ambiguity about them can mean the government will fail to carry its burden of proof in a criminal case.” Id. at 765.

“[T]he modified categorical approach should only be applied to ‘determine which alternative element in a divisible statute formed the basis of the defendant’s conviction.’ … The modified categorical approach ‘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.’” Aguilar-Turcios v. Holder, 740 F.3d 1294, 1300–02 (9th Cir. 2014) (quoting Descamps, 570 U.S. 254). See also Lopez-Marroquin v. Garland, 9 F.4th 1067, 1071 (9th Cir. 2021) (“‘In other words, the modified approach serves—and serves solely—as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque.’” Id. (quoting Mathis v. United States, 136 S. Ct. 2243, 2253 (2016))).

The Supreme Court in Descamps, overruled this court’s holding in United States v. Aguila-Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc), which held that the modified categorical approach applied to analysis of whether a prior conviction under a statute missing an element of the generic crime was a crime of violence. After Descamps, the court “no longer analyzes a statute missing an element of a generic offense, …, under the modified categorical approach.” United States v. Gomez, 757 F.3d 885, 889 (9th Cir. 2014).

Under the modified categorical approach, “we look beyond the statutory text to a limited set of documents to determine which statutory phrase was the basis for the conviction.” United States v. Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir.) (en banc) (internal quotation marks and citation omitted), … . This narrow set of documents includes: “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, [544 U.S. 13, 26] (2005).

Vasquez-Valle v. Sessions, 899 F.3d 834, 843–44 (9th Cir. 2018) (considering indictment and plea agreement); see also Walcott v. Garland, 21 F.4th 590, 596 (9th Cir. 2021) (“We also examine Shepard documents to see whether the statute displays alternative elements instead of alternative means of committing the same crime.”); Maie v. Garland, 7 F.4th 841, 852 (9th Cir. 2021) (“The modified categorical approach allows us to consider a particular class of documents to determine the elements established by the prior conviction, without considering the factual circumstances of the crime.”); Altayar, 947 F.3d at 549 (When applying the modified categorical approach the court consults a limited class of documents “to determine which alternative formed the basis of the [petitioner’s] prior conviction;” when the conviction is based on a guilty plea, the court “may examine the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”); Diego v. Sessions, 857 F.3d 1005, 1014 (9th Cir. 2017) (considering the indictment and the plea petition); Ramirez, 810 F.3d at 1131 (the court may “look beyond the elements of the statute to the documents of conviction, i.e., to the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment, to determine whether the petitioner was convicted of a set of elements that falls within the generic definition.” (internal quotation marks and citation omitted)); Rodriguez-Castellon, 733 F.3d 847, 853 (9th Cir. 2013) (“Under the modified approach, we examine certain judicial records to determine whether the defendant was necessarily convicted of the elements of a crime listed in a divisible statute that is a federal generic offense.” (citing Shepard, 544 U.S. at 20 (2005))); Hoang v. Holder, 641 F.3d 1157, 1164–65 (9th Cir. 2011) (The court will “consider whether documentation or other judicially noticeable facts in the record indicate that [the petitioner] was convicted of the elements of the generically defined crime.”); Carlos-Blaza v. Holder, 611 F.3d 583, 589 (9th Cir. 2010).

“The modified categorical approach is thus ‘a tool’ that allows us to apply the categorical approach. Moreover, ‘[i]t retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime,’ as well as its ‘basic method.’” Ramirez, 810 F.3d at 1131–32 (quoting Descamps, 570 U.S. at 263). “The idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generically defined crime, even if the statute defining the crime is overly inclusive.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4; see also Flores-Lopez, 685 F.3d at 862–65 (“Under the modified categorical approach, a court may review enumerated documents within the record to determine whether a petitioner’s plea ‘necessarily’ rested on the fact identifying the [offense] as generic.” (internal citation and quotation marks omitted)).

Although the court will “look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction,” it will not “look beyond the record of conviction itself to the particular facts underlying the conviction.” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004); see also Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir. 2002) (stating that the court will “conduct a limited examination of documents in the record to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially over-inclusive”). If a noncitizen’s admissions or concession leave material issues in dispute, the IJ may rely on facts admitted at the pleading stage, but may not consider further statements made by the noncitizen unless they are contained in the specific set of documents that are part of the record of conviction. Pagayon v. Holder, 675 F.3d 1182, 1189 (9th Cir. 2011) (per curiam). Note that the modified categorical approach “is concerned only with the crime of which the defendant was convicted, and not with his conduct.” Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) (emphasis in original).

“[W]hen the applicant stands convicted under a divisible state criminal statute that includes some offenses that are disqualifying and others that are not, and the record of conviction is ambiguous concerning which category fits the applicant’s crime, then the applicant has failed to carry the required burden of proof.” Marinelarena v. Garland, 6 F.4th 975, 977 (9th Cir. 2021) (citing Pereida v. Wilkinson, 141 S. Ct. 754, 762–63 (2021)).

There are two limitations on the application of the modified categorical approach: 1) the court may only rely on facts contained in a limited universe of judicial documents, such as the indictment or information and jury instructions, or if a guilty plea is at issue, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea; and 2) the court may only take into account the facts on which the defendant’s convictions necessarily rested. See Sanchez-Avalos v. Holder, 693 F.3d 1011, 1015 (9th Cir. 2012), abrogated in part by Descamps v. United States, 570 U.S. 254 (2013).

See also Lazo v. Wilkinson, 989 F.3d 705, 714 (9th Cir. 2021) (holding that Cal. Health and Safety Code § 11350, possession of a controlled substance, is divisible as to controlled substance, and that petitioner’s conviction documents unambiguously established his conviction was a violation of law “relating to a controlled substance”); Gomez Fernandez v. Barr, 969 F.3d 1077, 1090 (9th Cir. 2020) (considering the only conviction documents in the record – the charging document and the abstract of judgment – the court held that petitioner was removable as charged); Syed v. Barr, 969 F.3d 1012, 1020 (9th Cir. 2020) (together the original information and minutes of plea hearing demonstrated that petitioner was properly deemed removable as a noncitizen convicted of a crime involving moral turpitude); Tejeda v. Barr, 960 F.3d 1184, 1187 (9th Cir. 2020) (per curiam) (“Applying the modified categorical approach, Tejeda’s plea agreement, the charging document, and the minute order are cognizable for modified-categorical-approach purposes, … , and establish the elements of his offense.”); Dominguez v. Barr, 975 F.3d 725, 740 (9th Cir. 2020) (as amended) (applying the modified categorical approach, and looking to the charging documents, the court held that the “Oregon conviction for manufacture of a controlled substance under § 475.992(1)(a) is a categorical match with the generic drug trafficking offense, meaning Dominguez was convicted of an aggravated felony.”); Altayar v. Barr, 947 F.3d 544, 550 (9th Cir. 2020) (“Considering the charging document, plea agreement, and plea colloquy together, it is clear Altayar was convicted under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2).”); Myers v. Sessions, 904 F.3d 1101, 1111–12 (9th Cir. 2018) (concluding the Travel Act was divisible, applying the modified categorical approach, and considering the superseding information and plea agreement in determining the conviction was for a controlled substance offense); Rosales Rivera v. Lynch, 816 F.3d 1064, 1080 (9th Cir. 2016) (Cal. Penal Code § 118 is divisible into two separate offenses—written and oral perjury—and under the modified categorical approach, written perjury, which is Rosales Rivera’s crime of conviction, is not a crime involving moral turpitude); Padilla-Martinez v. Holder, 770 F.3d 825, 831–32 n.3 (9th Cir. 2014) (“A statute is divisible if it contains multiple, alternative elements of functionally separate crimes, and as to each alternative element, the jury must then find that element, unanimously and beyond a reasonable doubt.” (internal quotation marks and citation omitted)); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (“Because the statute of conviction identifies a number of controlled substances by referencing various [state] drug schedules and statutes and criminalizes the possession of any one, it is a divisible statute, and we may resort to the modified categorical approach to determine whether Ragasa’s crime of conviction is a removable offense.” (internal citation and quotation marks omitted)); Coronado v. Holder, 759 F.3d 977, 983 (9th Cir. 2014) (concluding that petitioner’s conviction was not a categorically removable offense and therefore modified categorical approach had to be applied); Carlos-Blaza, 611 F.3d at 590 (concluding that under the modified categorical approach a conviction for misapplication of funds under 18 U.S.C. § 656 necessarily involves fraud or deceit and therefore is an aggravated felony).

1. Charging Documents, Abstracts of Judgment, and Minute Orders

“[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.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013); see also Dominguez v. Barr, 975 F.3d 725, 735 (9th Cir. 2020) (as amended) (when applying the modified categorical approach, the court examines a limited class of documents—such as the charging instrument, jury instructions, jury verdict, or plea agreement— to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction); Tejeda v. Barr, 960 F.3d 1184, 1187 (9th Cir. 2020) (per curiam) (“Applying the modified categorical approach, Tejeda’s plea agreement, the charging document, and the minute order are cognizable for modified-categorical-approach purposes, … , and establish the elements of his offense.”); Altayar v. Barr, 947 F.3d 544, 549 (9th Cir. 2020) (“When, as here, the conviction is based on a guilty plea, we may examine the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” (citation omitted)); Vasquez-Valle v. Sessions, 899 F.3d 834, 843 (9th Cir. 2018) (explaining under the modified categorical approach, the court can look beyond the statutory text to a limited set of documents to determine which statutory phrase was the basis for the conviction, including the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.); Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016) ([W]e may look beyond the elements of the statute to the documents of conviction, i.e., to the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment, to determine whether the petitioner was convicted of a set of elements that falls within the generic definition.”); United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014) (criminal complaint, abstract of judgment, and docket sheet were appropriate sources for review under the modified categorical approach); Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (reliance on the abstract of judgment in combination with a charging document is permitted under the modified categorical approach); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (“Under the modified categorical approach, [the court] review[s] ‘a limited set of documents in the record of conviction: the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings’”); Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) (“Where the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint.”); Murillo-Prado v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (per curiam) (the modified categorical approach permits courts to consider a limited class of documents, such as indictments and jury instructions). Documents such as the indictment, jury instructions, plea colloquy and plea agreement, are merely illustrative and documents of equal reliability may also be considered. See Rosales Rivera v. Lynch, 816 F.3d 1064, 1078 (9th Cir. 2015); Coronado, 759 F.3d at 985; United States v. Leal-Vega, 680 F.3d 1160, 1168 (9th Cir. 2012).

“If a statute is not divisible or if there is no match under the modified approach, the conviction will not serve as a basis of removal.” Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020).

“In the context of a guilty plea, the modified categorical approach inquires whether a guilty plea to an offense defined by a nongeneric statute necessarily admitted elements of the generic offense.” Garcia v. Lynch, 786 F.3d 789, 795 (9th Cir. 2015) (quoting Alvarado v. Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (internal quotation marks omitted)).

A rap sheet may form part of the record of conviction. See Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1087–88 (9th Cir. 2017) (recognizing that a rap sheet may form part of the “record of conviction,” but concluding that under the circumstances of this case it was not sufficiently reliable to be considered under the modified categorical analysis).

See also Lazo v. Wilkinson, 989 F.3d 705, 714 (9th Cir. 2021) (charging documents and the transcript of the guilty-plea colloquy in petitioner’s case unambiguously established that petitioner’s conviction was for possession of cocaine under Cal. Health and Safety Code § 11350 and is a violation of law “relating to a controlled substance” as defined in the CSA); Gomez Fernandez v. Barr, 969 F.3d 1077, 1090 (9th Cir. 2020) (considering the only conviction documents in the record – the charging document and the abstract of judgment – the court held that petitioner was removable as charged); Syed, 969 F.3d at 1020 (the original information and minutes of plea hearing together demonstrated that petitioner was properly deemed removable as a noncitizen convicted of a crime involving moral turpitude); Tejeda, 960 F.3d at 1187 (“Applying the modified categorical approach, Tejeda’s plea agreement, the charging document, and the minute order are cognizable for modified-categorical-approach purposes, … , and establish the elements of his offense.”); Altayar, 947 F.3d at 550 (“Considering the charging document, plea agreement, and plea colloquy together, it is clear Altayar was convicted under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2).”); Myers v. Sessions, 904 F.3d 1101, 1111–12 (9th Cir. 2018) (concluding the Travel Act was divisible, applying the modified categorical approach, and considering the superseding information and plea agreement in determining the conviction was for a controlled substance offense); Garcia v. Lynch, 786 F.3d 789, 795 (9th Cir. 2015) (concluding that nothing in the conviction documents in the record—namely, the abstract of judgment and criminal complaint—established that Garcia’s conviction was for non-consensual grand theft); Kwong v. Holder, 671 F.3d 872, 879–80 (9th Cir. 2011) (discussing the sufficiency of abstract of judgment to establish conviction); Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010) (deferring “to the BIA’s reasonable conclusion that all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction” (internal quotation marks and citation omitted)); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) (Under the modified categorical approach, the court may look to the “charging documents in combination with a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding, and the judgment ... to document the elements of conviction.”).

In United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc), abrogated on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), abrogated in part by Moncrieffe v. Holder, 569 U.S. 184 (2013), the court held that the district court could rely on the state court clerk’s minute order in determining whether a prior state burglary conviction qualified as a crime of violence. Snellenberger, 548 F.3d at 702 . In Cabantac v. Holder, 736 F.3d 787, 790 (9th Cir. 2013) (as amended), the court held that where the abstract of judgment or minute order “specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment” the court may consider the facts alleged in that count. See id. (holding that the record was clear that the petitioner pleaded guilty to possession of a controlled substance that supported the order of removal). See also Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) (“Where the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint.”).

Prior to Snellenberger, abstracts of judgment were found not sufficient to establish the nature of a defendant’s conviction. See, e.g., United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (holding that a California abstract of judgment was not sufficient to establish unequivocally that defendant was convicted of the sale and transportation of methamphetamine), implied overruling by Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011); cf. United States v. Sandoval-Sandoval, 487 F.3d 1278, 1280 (9th Cir. 2007) (per curiam) (contrasting impermissible reliance on an abstract of judgment to determine the nature of a conviction with permissibly using it to determine “a discrete fact regarding Defendant’s prior conviction, namely, the length of sentence imposed”). This court has stated that although Snellenberger did not explicitly overrule Navidad-Marcos, it is clear that its reasoning is inconsistent with that decision. Kwong v. Holder, 671 F.3d 872, 879 (9th Cir. 2011) (discussing the sufficiency of abstract of judgment to establish conviction).

“When a plea agreement makes direct reference to a specific count in the charging document, the charging document ‘may be considered in combination with other documents in the record to determine whether [the petitioner] pled guilty to an aggravated felony.’” Murillo-Prado, 735 F.3d at 1157. See also United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1142 (9th Cir. 2014) (in non-immigration case, plea of guilty to second degree sexual assault was a document that court could consider under the modified categorical approach).

“Charging papers alone are never sufficient” but “may be considered in combination with a signed plea agreement.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc) (internal citation omitted), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4; see also Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (reliance on the abstract of judgment in combination with a charging document is permitted under the modified categorical approach); Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003). Compare United States v. Savage, 488 F.3d 1232, 1236 (9th Cir. 2007) (applying the modified categorical approach “[b]ased on the charging document and the transcript of Savage’s plea allocution” to establish that he committed a crime of violence). However, “the charging instrument … may not be considered when the original charges are dismissed and the defendant pleads guilty to a different offense.” Alvarado v. Holder, 759 F.3d 1121, 1131 (9th Cir. 2014).

“The set of noticeable documents includes the indictment (but only in conjunction with a signed plea agreement), the judgment of conviction, the minute order fully documenting the judgment, jury instructions, a signed guilty plea or the transcript from the plea proceedings.” Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1035 (9th Cir. 2010) (where IJ relied solely on noncitizen’s judicial admissions and an unidentified “conviction document” to determine that conviction was a controlled substance offense under the INA, the court held the government failed to meet its burden because the judicially noticeable documents in the record were inconclusive); see also Fregozo v. Holder, 576 F.3d 1030, 1033 n.1 (9th Cir. 2009) (explaining that neither the court nor the BIA could rely on police reports that were not incorporated by reference into the nolo plea or the record of conviction, to determine whether alien was convicted of a “crime of child abuse” within the meaning of the INA).

“[T]he INA makes clear that ‘[o]fficial minutes of a court proceeding’ are sufficient ‘proof of a criminal conviction.’” Retuta v. Holder, 591 F.3d 1181, 1184–85 (9th Cir. 2010) (quoting 8 U.S.C. § 1229a(c)(3)(B)(iv)).

“When the modified categorical approach must be employed, an alien’s factual admissions may not be used as evidence to establish that he is removable, unless those admissions are included in the ‘narrow, specified set of documents that are part of the record of conviction,’ such as a plea agreement.” Perez-Mejia v. Holder, 663 F.3d 403, 410 (9th Cir. 2011) (citations omitted).

2. Police Reports and Stipulations

The court may not “look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for,” a relevant offense. Shepard v. United States, 544 U.S. 13, 16 (2005) (holding “that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”); see also United States v. Almazan-Becerra, 482 F.3d 1085, 1090–91 (9th Cir. 2007) (remanding to determine whether, in light of Shepard, a police report stipulated to form the basis of a guilty plea could be used to support a sentencing enhancement).

However, “[a]lthough police reports and complaint applications, standing alone, may not be used to enhance a sentence following a criminal conviction, the contents of these documents may be considered if specifically incorporated into the guilty plea or admitted by a defendant.” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005) (Certification for Determination of Probable Cause, incorporated by reference into guilty plea, demonstrated that conviction met the definition of sexual abuse of a minor) (internal citation omitted); see also Fregozo v. Holder, 576 F.3d 1030, 1033 n.1 (9th Cir. 2009) (explaining that neither the court nor the BIA could rely on police reports that were not incorporated by reference into the nolo plea or the record of conviction, to determine whether petitioner was convicted of a “crime of child abuse” within the meaning of the INA); United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006) (superseded by regulation ) (police report could be considered in determining whether prior conviction qualified as an aggravated felony because report was incorporated by reference into the charging document and stipulated to form the factual basis of a guilty plea); United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005) (defendant’s assent to the statement of facts in a motion to set aside the indictment or information under Cal. Penal Code § 995 was a proper basis for a sentencing court to engage in a modified categorical analysis).

3. Probation or Presentence Reports

In Corona-Sanchez, this court held that the defendant’s presentence report (“PSR”), which recited the facts of the crime as alleged in the charging papers, was not sufficient to establish that the defendant pled guilty to the elements of the generic definition of a crime. United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4; see also United States v. Castillo-Marin, 684 F.3d 914, 919–20 (9th Cir. 2012) (plain error to rely on PSR to determine defendant had prior conviction for crime of violence); Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir. 2008); Abreu-Reyes v. INS, 350 F.3d 966, 967 (9th Cir. 2003) (order) (IJ may not use PSR to determine whether petitioner was an aggravated felon); Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1153–54 (9th Cir. 2003) (BIA erred in relying solely on the PSR to demonstrate the elements of a drug trafficking conviction); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076–77 (9th Cir. 2003) (order); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). Cf. United States v. Rodriguez-Guzman, 506 F.3d 738, 746–47 & n.9 (9th Cir. 2007) (stating that under Shepard’s modified categorical approach a sentencing hearing transcript is not judicially noticeable).

4. Extra-Record Evidence

Under the modified categorical approach, evidence outside the record of conviction may not be considered to determine whether a conviction is a predicate immigration offense. See Cervantes v. Holder, 772 F.3d 583 (9th Cir. 2014) (“in this circuit, ‘an IJ is limited to the record of conviction in determining whether an alien has been ‘convicted of’ a CIMT.’” (citation omitted)); Olivas-Motta v. Holder, 746 F.3d 907, 908 (9th Cir. 2014) (holding that the agency is confined to the record of conviction in determining whether a noncitizen has been convicted of a crime involving moral turpitude); Tokatly v. Ashcroft, 371 F.3d 613, 623–24 (9th Cir. 2004) (stating that “[w]e decline to modify this court’s – and the Board’s – strict rules against extra-record of conviction evidence in order to authorize use of an alien’s admissions in determining removability” and holding that IJ erred by relying on testimonial evidence at the removal hearing to determine that petitioner was convicted of a crime of domestic violence); Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1036 (9th Cir. 2010) (IJ’s reliance on petitioner’s admissions, coupled with the government attorney’s assessment that was based on a “rap sheet” that the IJ never looked at, was insufficient to conclude that petitioner “had been convicted of possession for sale of a controlled substance that would constitute an aggravated felony under the INA.”); Cisneros-Perez v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006) (inferences and admissions during testimony before the IJ could not be used to determine whether petitioner was convicted of a crime of domestic violence); see also Taylor v. United States, 495 U.S. 575, 601 (1990) (noting the “practical difficulties and potential unfairness of a factual approach,” rather than a categorical approach, to a defendant’s prior offenses).

5. Remand

If the court determines that the record in a case does not support attaching immigration consequences to a particular crime of conviction under the modified categorical approach, the case will ordinarily not be remanded under INS v. Ventura, 537 U.S. 12 (2002) (per curiam), for the government to submit further documentation. See Flores-Lopez v. Holder, 685 F.3d 857, 865 (9th Cir. 2012); Fregozo v. Holder, 576 F.3d 1030, 1036 (9th Cir. 2009); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132–35 (9th Cir. 2006) (en banc); see also Ragasa v. Holder, 752 F.3d 1173, 1176 n.4 (9th Cir. 2014) (remanding to BIA to conduct modified categorical approach was not warranted). However, remand may be appropriate where it is unclear whether DHS had the opportunity to introduce all relevant evidence regarding the conviction in the proceedings below. See Flores-Lopez, 685 F.3d at 865–67 (remanding for BIA to apply modified categorical approach in the first instance where the record of conviction may have been incomplete).

See also Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1036 (9th Cir. 2010) (granting petition for review and reversing the order of removal); Retuta v. Holder, 591 F.3d 1181, 1190 (9th Cir. 2010) (“Because the Government presented no evidence sufficient to establish that Retuta was subject to removal, we grant the petition for review, reverse the order of removal, and remand to the Board for disposition consistent with this opinion”).

IV. CATEGORIES OF CRIMINAL OFFENSES THAT CAN BE GROUNDS OF REMOVABILITY AND/OR INADMISSIBILITY

A. Crimes Involving Moral Turpitude (“CIMT”)

1. Removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)

“Under federal immigration law, a non-citizen may be removed from the country if he has been convicted of a ‘crime involving moral turpitude’(CIMT).” Ortiz v. Garland, 25 F.4th 1223, 1225 (9th Cir. 2022). 8 U.S.C. § 1227(a)(2)(A)(i) provides that the Attorney General can order the removal of a non-citizen who either 1) was convicted within five years of entering the United States of a CIMT that may be punishable by a sentence of one year or longer, or 2) was convicted of two or more CIMTs not arising out of a single scheme of criminal misconduct. See Ortiz, 25 F.4th at 1225.

a. Single Crime Committed within Five Years of Admission

“Any alien who is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and ... for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i)(I)–(II). See also Ortiz v. Garland, 25 F.4th 1223, 1225 (9th Cir. 2022); Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1084 (9th Cir. 2021); Ortega-Lopez v. Barr, 978 F.3d 680, 683 (9th Cir. 2020); Altayar v. Barr, 947 F.3d 544, 548 (9th Cir. 2020); Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (“Section § 1227(a)(2)(A)(i)(I) provides that an alien convicted of a CIMT for which the potential punishment is one year or more is removable.”).

The “date of admission” for purposes of calculating the five years is the date of the noncitizen’s lawful entry to the United States upon inspection and authorization by an immigration officer. See Shivaraman v. Ashcroft, 360 F.3d 1142, 1148–49 (9th Cir. 2004). The noncitizen’s subsequent adjustment to lawful permanent resident status will not trigger the five-year provision if he or she continued to maintain lawful presence in the United States after an initial lawful entry. See id. at 1149 (applicant was not removable because his CIMT was not committed within five years of his initial lawful admission).

When an individual has multiple admissions preceding a conviction for a CIMT, the relevant admission is the admission that led to his presence in the United States when the crime was committed. Route v. Garland, 996 F.3d 968, 977 (9th Cir. 2021) (deferring to the BIA’s interpretation that the relevant admission for purposes of 8 U.S.C. § 1227(a)(2)(A)(i)(I) is the admission that led to petitioner’s presence in the United States when he committed the crime)

Where the noncitizen enters the United States without inspection or admission, “[c]ertain events, such as adjustment to LPR status or acceptance into the Family Unity Program (FUP), qualify as ‘admission’ for immigration purposes.” United States v. Hernandez-Arias, 757 F.3d 874, 880 (9th Cir. 2014); see also Hernandez-Gonzalez v. Holder, 778 F.3d 793, 798 (9th Cir. 2015) (“Because Hernandez-Gonzalez entered the United States without inspection or admission, the date of his adjustment of status serves as a date of admission that triggers the five-year clock under 8 U.S.C. § 1227(a)(2)(A)(i)); Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134–35 (9th Cir. 2001) (applicant’s adjustment of status could constitute an “admission” for purposes of removability based on a conviction of an aggravated felony where he initially entered the United States without inspection).

b. Sentence of One Year or Longer.

In Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1089 (9th Cir. 2021), the court held that California’s amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days for purposes of state law, cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).

2. Multiple Offenses at Any Time

“Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii); see also Orellana v. Barr, 967 F.3d 927, 938 (9th Cir. 2020) (holding that LPR’s convictions for two counts of criminal stalking did not arise out of a single scheme of conduct); Coquico v. Lynch, 789 F.3d 1049, 1053–55 (9th Cir. 2015) (granting petition and remanding where one of the two crimes at issue, “unlawful laser activity” was not a crime involving moral turpitude, so as to subject petitioner to removal); Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) (“[A]n immigrant is removable if, after being admitted, he is convicted of two or more CIMTs that did not arise out of a single scheme of criminal misconduct.” (internal quotation marks, alteration, and citation omitted)). For purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(ii), the government must prove that the crimes were not part of a single scheme of criminal misconduct. See Ye v. INS, 214 F.3d 1128, 1134 n.5 (9th Cir. 2000) (rejecting argument that the court lacked jurisdiction, because INS did not show that the two counts of vehicle burglary arose out of different criminal schemes); Leon-Hernandez v. INS, 926 F.2d 902 (9th Cir. 1991) (conviction for two counts of oral copulation, one month apart, not part of a single scheme); Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990) (two robberies at same bank arose out of a single scheme).

“The INA does not define ‘single scheme of criminal misconduct.’” Orellana v. Barr, 967 F.3d 927, 938–39 (9th Cir. 2020). However, the BIA interpreted the phrase “single scheme of criminal misconduct” in Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992). See Orellana, 967 F.3d at 939–40 (discussing the BIA’s decision in Adetiba) Szonyi v. Barr, 942 F.3d 874, 891 (9th Cir. 2019) (same). In Adetiba, the BIA explained:

when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.

20 I. & N. Dec. at 509 ; see also Orellana, 967 F.3d at 939 (quoting Adetiba, 20 I & N. Dec. at 509 ); Szonyi, 942 F.3d at 891 (quoting Adetiba, 20 I & N. Dec. at 509 ). The BIA announced in Matter of Islam, 25 I. & N. Dec. 637, 641 (BIA 2011), that the Adetiba standard should be applied uniformly across all circuits. See Szonyi, 942 F.3d at 891–96.

In Orellana v. Barr, the court held that the BIA reasonably concluded that petitioner’s conviction for two CIMTs, which occurred on different dates over different periods of time, did not arise out of a single scheme of criminal misconduct, and therefore he was removable as charged pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). 967 F.3d at 938–40.

In Szonyi v. Barr, deferring to the BIA’s interpretation, the court held that the BIA properly determined petitioner’s multiple crimes committed over a five to six hour period did not arise from a “single scheme of criminal misconduct, and thus he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii). Szonyi, 942 F.3d at 890–91 (concluding the BIA properly applied its interpretation of “single scheme of conduct” and that application of the interpretation was not impermissibly retroactive).

3. Inadmissibility Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I)

A noncitizen convicted or who admits the essential elements of a crime involving moral turpitude (“CIMT”) is inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i); see also Safaryan v. Barr, 975 F.3d 976, 981, 988 (9th Cir. 2020) (concluding that BIA properly held that petitioner’s conviction was a CIMT and that he was therefore inadmissible and ineligible for adjustment of status); Romo v. Barr, 933 F.3d 1191, 1195 (9th Cir. 2019); Mtoched v. Lynch, 786 F.3d 1210, 1216 (9th Cir. 2015) (“Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien may be removed from the United States if convicted of a CIMT.”).

A noncitizen with one CIMT is not inadmissible if he or she meets the petty offense exception. See 8 U.S.C. § 1182(a)(2)(A)(ii). A CIMT will meet the petty offense exception if “‘the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and ... the alien was not sentenced to a term of imprisonment in excess of 6 months.’” Lafarga v. INS, 170 F.3d 1213, 1214–15 (9th Cir. 1999) (quoting 8 U.S.C. § 1182(a)(2)(A)(ii)(II)); see also Castillo-Cruz v. Holder, 581 F.3d 1154, 1161–62 (9th Cir. 2009) (“[S]ingle conviction for a crime of moral turpitude – petty theft – may fall within the petty offenses exception set forth at 8 U.S.C. § 1182(a)(2)(A)(ii)(II)”). For the purpose of the petty offense exception, “‘the maximum penalty possible’ ... refers to the statutory maximum sentence, not the guideline sentence to which the alien is exposed.” Mendez-Mendez v. Mukasey, 525 F.3d 828, 835 (9th Cir. 2008) (offense of bribery of a public official did not qualify for petty offense exception where statutory maximum for offense was 15 years). Additionally, this court has deferred to the BIA’s reasonable approach of considering the sentence that could have been imposed, not the actual sentence. See Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (citing Matter of Cortez, 25 I. & N. Dec. 301, 307 (BIA 2010)).

The youthful offender exception will apply if:

the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States.

8 U.S.C. § 1182(a)(2)(A)(ii)(I).

4. Definition of Crime Involving Moral Turpitude

“The INA does not define the term ‘crime involving moral turpitude.’” Fugow v. Barr, 943 F.3d 456, 457 (9th Cir. 2019) (per curiam); see also Ortiz v. Garland, 25 F.4th 1223, 1227 (9th Cir. 2022) (“While there is no federal statutory definition of a CIMT, we have defined it as involving ‘either fraud or base, vile, and depraved conduct that shocks the public conscience.’” (quoting Fugow, 943 F.3d at 458)); Walcott v. Garland, 21 F.4th 590, 598 (9th Cir. 2021) (“Although the immigration statutes do not specifically define offenses constituting crimes involving moral turpitude, a crime involving moral turpitude is generally a crime that (1) is vile, base, or depraved and (2) violates accepted moral standards.” (internal quotation marks and citation omitted)); Diaz-Flores v. Garland, 993 F.3d 766, 769 (9th Cir. 2021) (“[T]he Immigration and Nationality Act neither defines moral turpitude nor provides any rules for determining whether a crime involves moral turpitude.”); Safaryan v. Barr, 975 F.3d 976, 981 (9th Cir. 2020) (noting the court has “described the statutory phrase ‘moral turpitude’ as ‘perhaps the quintessential example of an ambiguous phrase.’”). “[T]he BIA must consider on a case-by-case basis whether a particular crime involves moral turpitude.” Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011). See also Hernandez-Gonzalez v. Holder, 778 F.3d 793, 801 (9th Cir. 2015) (“[I]mmigration statutes do not specifically define offenses constituting crimes involving moral turpitude[.]” (internal quotation marks and citations omitted)) Ceron v. Holder, 747 F.3d 773, 779–80 (9th Cir. 2014) (en banc) (same); Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (same).

The BIA has defined a crime involving moral turpitude as having “two essential elements: [1] reprehensible conduct and [2] a culpable mental state.” Matter of Silva-Trevino, 26 I. & N Dec. 826, 834 (BIA 2016). Conduct is reprehensible if it is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Jimenez-Cedillo, 27 I. & N. Dec. 1, 3 (BIA 2017) (citation omitted).

Ortega-Lopez v. Barr, 978 F.3d 680, 685 (9th Cir. 2020). See also Silva v. Garland, 993 F.3d 705, 712 (9th Cir. 2021) (“The BIA has further explained that to involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state.” (internal quotation marks and citation omitted)); Safaryan, 975 F.3d at 981 (“In determining whether a crime involves this sort of enhanced reprehensibility, we consider the actus reus and the mens rea in concert to determine whether the behavior they describe is sufficiently culpable to be labeled morally turpitudinous.” (internal quotation marks and citation omitted)).

“[F]raud crimes are categorically crimes involving moral turpitude, simply by virtue of their fraudulent nature.” Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011). “Non-fraudulent CIMTs ‘almost always involve an intent to harm someone,’” Saavedra-Figueroa, 625 F.3d at 626 (quoting Nunez v. Holder, 594 F.3d 1124, 1131 & n.4 (9th Cir. 2010)), or “intent to injure, actual injury, or a protected class of victim,” Turijan v. Holder, 744 F.3d 617, 619 (9th Cir. 2014) (citation omitted). In determining whether an offense is a CIMT, the BIA has examined “whether the act is accompanied by a vicious motive or a corrupt mind” because “evil or malicious intent is ... the essence of moral turpitude.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (citations omitted).

Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016). See also Walcott v. Garland, 21 F.4th 590, 598–99 (9th Cir. 2021) (explaining that the court has described CIMTs as offenses that offend society’s most fundamental values, or shock society’s conscience,”… and [has] observed that non-fraudulent CIMTs ‘almost always’ involve the intent to injure, actual injury, or a protected class of victims.”) (internal quotation marks and citations omitted)).

“Not every offense that runs against ‘accepted rules of social conduct’ will qualify as a CIMT, however. Robles-Urrea[, 678 F.3d at 708.] Rather, ‘[o]nly truly unconscionable conduct surpasses the threshold of moral turpitude.’ Id.” Turijan, 744 F.3d at 621 (holding “felony false imprisonment under California law does not qualify as a categorical CIMT”).

The phrase “crime involving moral turpitude” is not unconstitutionally vague. See Martinez-de Ryan v. Whitaker, 909 F.3d 247, 252 (9th Cir. 2018).

“Almost every Term, the Supreme Court issues a ‘new’ decision with slightly different language that forces federal judges, litigants, lawyers and probation officers to hit the reset button once again” in determining whether a crime is a CIMT. Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2015) (en banc) (Owens, J., concurring); see also Conejo-Bravo v. Sessions, 875 F.3d 890, 893 (9th Cir. 2017) (quoting Almanza-Arenas and noting that the current approach to CIMTs and crimes of violence can lead to unpredictable results).

See also Ortiz v. Garland, 25 F.4th 1223, 1228 (9th Cir. 2022) (holding voluntary manslaughter in violation of California Penal Code § 192(a) in California qualifies as a crime involving moral turpitude under 8 U.S.C § 1227(a)(2)(A)); Maie v. Garland, 7 F.4th 841, 853 (9th Cir. 2021) (concluding that Haw. Rev. Stat. § 708-833(1) is overbroad and indivisible, and thus, Maie’s convictions for fourth degree theft were not categorically CIMTs); Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (as amended) (holding that, although robbery under Oregon Revised Statutes § 164.395 involves a taking of property and the threatened or actual use of force, the minimal force required for conviction is insufficient to categorically label the crime a CIMT); Vasquez-Valle v. Sessions, 899 F.3d 834, 839 (9th Cir. 2018) (“There are two categories of CIMTs: those involving fraud and those involving grave acts of baseness or depravity.” (internal quotation marks and citation omitted)); Conejo-Bravo v. Sessions, 875 F.3d 890, 892–93 (9th Cir. 2017) (concluding that conviction under California Vehicle Code § 20001(a) for felony hit and run qualified as a CIMT); Mtoched v. Lynch, 786 F.3d 1210, 1216 (9th Cir. 2015) (“‘[T]he federal generic definition of a CIMT is a crime involving fraud or conduct that (1) is vile, base, or depraved and (2) violates accepted moral standards. Non-fraudulent CIMTs almost always involve an intent to harm someone.’ Saavedra–Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010) (internal quotation marks and citations omitted).”); Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013) (“‘[T]he essence of moral turpitude ’ is an ‘evil or malicious intent.’” (quoting Latter-Singh, 668 F.3d at 1161)); Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014) (“[T]he creation of a substantial, actual risk of imminent death is sufficiently reprehensible, or in terms of our case law “base, vile, and depraved,” to establish a CIMT, even though no actual harm need occur.”); Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir. 2014) (“Misuse of a passport to facilitate an act of international terrorism is categorically a crime involving moral turpitude.”); Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014) (crimes of moral turpitude generally involve base, vile and depraved conduct that shocks the public conscience); Robles-Urrea v. Holder, 678 F.3d 702, 707–11 (9th Cir. 2012) (concluding BIA erred in determining that misprision of felony was categorically a CIMT); Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008) (holding that crime of false identification to a peace officer is not categorically a CIMT).

The court has noted that it is often helpful to determine whether a state crime involves moral turpitude by comparing it with crimes that have previously been found to involve moral turpitude. Rohit v. Holder, 670 F.3d 1085, 1089 (9th Cir. 2012).

“When the only benefit the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude.” See Latu v. Mukasey, 547 F.3d 1070, 1074 (9th Cir. 2008) (quotation marks omitted) (concluding that violation of Hawaii Revised Statute § 291C-12.5(a), which requires the driver to give an address or vehicle registration number following an accident resulting in substantial bodily injury, was not a CIMT).

“Crimes involving fraud are considered to be crimes involving moral turpitude.” Tijani v. Holder, 628 F.3d 1071, 1075–79 (9th Cir. 2010) (internal quotation marks and citation omitted) (conviction for using false statements to obtain credit cards in violation of California law were inherently fraudulent). See also Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1281–82 (9th Cir. 2014) (per curiam) (under modified categorical approach, violation of Arizona Revised Statutes § 13-2008(A) was a CIMT because stealing a real person’s identity for the purpose of obtaining employment is inherently fraudulent); Espino-Castillo v. Holder, 770 F.3d 861, 864 (9th Cir. 2014) (Arizona’s conviction for forgery was a crime involving moral turpitude); Hernandez de Martinez v. Holder, 770 F.3d 823 (9th Cir. 2014) (per curiam) (conviction for crimination impersonation by assuming a false identity with intent to defraud is categorically a CIMT); Planes v. Holder, 652 F.3d 991 (9th Cir. 2011) (“crimes that have fraud as an element, …, are categorically crimes involving moral turpitude). See, e.g., Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994) (California conviction for grand theft is a CIMT); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per curiam) (conspiracy to affect the market price of stock by deceit with intent to defraud is a CIMT); Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978) (dealing in counterfeit obligations is a CIMT); see also United States v. Esparza-Ponce, 193 F.3d 1133, 1136–37 (9th Cir. 1999) (stating in illegal reentry case that petty theft constitutes a CIMT); Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017–20 (9th Cir. 2005) (burglary convictions under Wash. Rev. Code §§ 9A.52.025(1) and 9A.08.020(3) do not categorically meet the definition of CIMT, but do meet the definition under the modified categorical approach because petitioner intended to steal property, a fraud crime), abrogated on other grounds by Holder v. Martinez Guetierrez, 566 U.S. 583 (2012).

“Although non-fraudulent CIMTs generally involve an ‘intent to injure, actual injury, or a protected class of victims,’… , [the court has] held that certain reckless endangerment offenses qualify as CIMTs.” Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019) (per curiam) (quoting Castrijon-Garcia v. Holder, 704 F.3d 1205, 1213 (9th Cir. 2013)). In Fugow, the court determined that first-degree unlawful imprisonment under Hawaii law is categorically a CIMT. 943 F.3d at 459.

The court has held that “because [California Penal Code] § 114 does not require fraudulent intent, it is not categorically a crime involving moral turpitude.” Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1121 (9th Cir. 2020) (holding a conviction for using false document to conceal citizenship in violation of CPC § 114 does not qualify as an aggravated felony for purposes of eligibility for cancellation of removal or a CIMT).

Crimes against property that do not involve fraud are generally not considered CIMT’s. See Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.5 (9th Cir. 1995) (crime of malicious mischief was not CIMT).

Strict liability offenses and crimes against the state are generally not CIMT’s. See Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (statutory rape under California Penal Code § 261.5(d) is not a categorical CIMT because statute proscribes some conduct that is malum prohibitum rather than malum in se); Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000) (noting difference between malum prohibitum, an act only statutorily prohibited, and malum in se, an act inherently wrong); see also Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir. 2005) (concluding that a conviction for attempted entry of goods by means of a false statement was not a CIMT); Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1118–19 (9th Cir. 2003) (Arizona aggravated driving under the influence is not a categorical CIMT where person may be convicted without actually driving); Murillo-Salmeron v. INS, 327 F.3d 898, 902 (9th Cir. 2003) (simple DUI convictions are not CIMT’s); Beltran-Tirado, 213 F.3d at 1183–84 (convictions for making a false attestation on an employment verification form and using a false Social Security number do not constitute CIMT’s); United States v. Chu Kong Yin, 935 F.2d 990, 1003–04 (9th Cir. 1991) (gambling crimes did not necessarily involve moral turpitude). But see Marmolejo-Campos v. Holder, 558 F.3d 903, 917 (9th Cir. 2009) (en banc) (concluding that DUI offenses committed with the knowledge that one’s driver’s license has been suspended or otherwise restricted are crimes involving moral turpitude).

A bribery conviction under 18 U.S.C. § 666(a)(2) categorically qualifies as a crime involving moral turpitude, because it requires proof of a “corrupt mind.” Martinez-de Ryan v. Whitaker, 909 F.3d 247, 250 (9th Cir. 2018) (stating that the court’s holding comports with “decades-old decisions by the BIA and by the Second, Fourth, and Fifth Circuits that bribery involves moral turpitude”).

A witness tampering conviction in violation of Oregon Revised Statutes § 162.285 is overbroad, and not categorically a CIMT because the minimum conduct it criminalizes is not necessarily fraudulent, base, vile, or depraved. Vasquez-Valle v. Sessions, 899 F.3d 834, 840 (9th Cir. 2018) (concluding statute was divisible, applying modified categorical approach, and determining that petitioner’s conviction was not a CIMT). See also Escobar v. Lynch, 846 F.3d 1019, (9th Cir. 2017) (holding that witness tampering in violation of Cal. Penal Code § 136.1(a) was not categorically a crime of moral turpitude, and remanding for the agency to consider if the statute was divisible and if so to conduct the modified categorical analysis).

Simple battery is generally not a CIMT, although it may be rendered such by aggravating circumstances. See Morales-Garcia v. Holder, 567 F.3d 1058, 1067 (9th Cir. 2009) (concluding that conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant was not categorically a CIMT); Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006) (Arizona domestic assault statute is not categorical CIMT because it penalizes reckless conduct); but see Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (willful infliction of injury to a spouse is CIMT), superseded by statute on other grounds as stated in Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011).

The court explained in Altayar v. Barr:

[A]n aggravated assault presents a very different situation than mere simple assault. … “[S]ome assault statutes ... have been held to be CIMTs. Those statutes include as an element ‘some aggravating dimension’ sufficient to increase the culpability of an assault or battery and so to transform the offense into one categorically a CIMT.” Uppal [v. Holder, 605 F.3d 712, 717 (9th Cir. 2010)] (citing various BIA decisions); see also Leal, 771 F.3d at 1148; Latter-Singh, 668 F.3d at 1161. As a result, “to rise to the level of moral turpitude, an assault crime must involve a particular type of aggravating factor, one that says something about the turpitude or blameworthiness inherent in the action.” Uppal, 605 F.3d at 717.

947 F.3d 544, 551 (9th Cir. 2020). In Altayar, applying the modified categorical approach the court held that “an aggravated assault conviction under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) involving the use of a deadly weapon or dangerous instrument qualified as a crime involving moral turpitude.” Altayar, 947 F.3d at 551–55. See also Safaryan v. Barr, 975 F.3d 976, 988 (9th Cir. 2020) (holding the BIA correctly determined that that petitioner’s conviction under Cal. Penal Code §245(a)(1), which proscribes certain aggravated forms of assault, was categorically a “crime involving moral turpitude,” rendering him ineligible for status adjustment).

“[A] § 646.9(a) conviction [for criminal stalking] is categorically a CIMT.” Orellana v. Barr, 967 F.3d 927, 938 (9th Cir. 2020) (holding that the BIA did not err in concluding that a § 646.9(a) criminal stalking conviction is a CIMT because a § 646.9(a) offense is categorically a CIMT, further holding that the BIA reasonably concluded that Orellana’s two § 646.9(a) counts of conviction did not arise out of a single scheme of criminal misconduct.).

Sex-related offenses (other than statutory rape) are generally considered to be CIMT’s. See Rohit v. Holder, 670 F.3d 1085, 1089–90 (9th Cir. 2012) (conviction for solicitation of prostitution); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (“Incest ... involves an act of baseness or depravity contrary to accepted moral standards, and we hold that it too is a ‘crime involving moral turpitude.’”); see also Zavaleta-Gallegos v. INS, 261 F.3d 951 (9th Cir. 2001) (petitioner did not challenge that conviction for stalking was a CIMT). But see Nicanor-Romero v. Mukasey, 523 F.3d 992, 997–1008 (9th Cir. 2008) (conviction under Cal. Penal Code § 647.6(a) for annoying or molesting a child under the age of 18 was not categorically a CIMT), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). “In the context of sexual offenses, whether the crime involves moral turpitude turns on whether there is (1) actual harm or (2) a protected class of victim.” Gonzalez-Cervantes, 709 F.3d at 1267 (concluding that California conviction for misdemeanor sexual battery involved moral turpitude).

In Menendez v. Whitaker, 908 F.3d 467, 472–74 (9th Cir. 2018), abrogation recognized by Diaz-Rodriguez v. Garland, 12 F.4th 1126, 1136 (9th Cir. 2021), reh’g en banc granted, 29 F.4th 1018 (9th Cir. 2022) (order) (granting rehearing en banc and vacating three-judge panel opinion in Diaz-Rodriguez), the court held that a conviction for lewd or lascivious conduct in violation of Cal. Penal Code § 288(c)(1) is not categorically a crime involving moral turpitude. The court stated that although § 288(c)(1) involves a protected class of persons (minors aged 14 or 15), not all criminal statutes intended to protect minors involve moral turpitude. Menendez, 908 F.3d at 473.

In Syed v. Barr, 969 F.3d 1012, 1015 (9th Cir. 2020), distinguishing Menendez, the court held that a conviction under Cal. Penal Code § 288.3(a), attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, categorically constitutes a crime involving moral turpitude.

Indecent exposure under Cal. Penal Code § 314(1) is categorically a CIMT. Betansos v. Barr, 928 F.3d 1133, 1146 (9th Cir. 2019). In Betansos, the court recognized that although the court’s prior decision in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) held to the contrary, a subsequent published BIA decision, Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013), which held that § 314(1) is categorically a CIMT, was entitled to deference. Betansos, 928 F.3d at 1136. Additionally, the court determined that Cortes Medina applied retroactively in Betansos’s case. Id. at 1143–46 (applying the test adopted in Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), to determine whether the BIA’s decision in Cortes Medina, should apply retroactively, and noting that the retroactive analysis is conducted on a case-by-case basis).

In contrast, “indecent exposure to a person under the age of fourteen pursuant to Wash. Rev. Code § 9A.88.010(2)(b) is not categorically a crime involving moral turpitude.” Barrera-Lima v. Sessions, 901 F.3d 1108, 1123 (9th Cir. 2018) (further concluding that Wash. Rev. Code § 9A.88.010(2)(b) is indivisible and that the modified categorical approach is inapplicable). The court in Barrera-Lima stated, “Other indecent exposure statutes aimed at protecting a class of victims, such as children, may categorically qualify as crimes involving moral turpitude because they include any number of the elements missing from Wash. Rev. Code § 9A.88.010(2)(b)—sexual motivation, actual observation, or specific intent—but we are not called upon to assess those statutes.” Barrera-Lima, 901 F.3d at 1123.

Knowing possession of child pornography is a CIMT. See also United States v. Santacruz, 563 F.3d 894, 897 (9th Cir. 2009).

Communication with a minor for immoral purposes in violation of Revised Code of Washington § 9.68A.090 is a crime of moral turpitude. See Islas-Veloz v. Whitaker, 914 F.3d 1249, 1251 (9th Cir. 2019), cert. denied sub nom. Islas-Veloz v. Barr, 140 S. Ct. 2704 (2020); see also Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007), abrogated on other grounds in Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010).

“[D]rug trafficking crimes are generally crimes involving moral turpitude.” Romo v. Barr, 933 F.3d 1191, 1195 (9th Cir. 2019). See also Walcott v. Garland, 21 F.4th 590, 599 (9th Cir. 2021). For example, solicitation to possess a large quantity of marijuana is a CIMT for purposes of removal pursuant to § 1227(a)(2)(A)(i)(I), see Barragan-Lopez v. Mukasey, 508 F.3d 899, 904 (9th Cir. 2007), and for purposes of inadmissibility under § 1182(a)(2)(A)(i)(I), see Romo, 933 F.3d at 1199 (holding that a conviction in Arizona for solicitation to possess at least four pounds of marijuana for sale constitutes a crime involving moral turpitude for purposes of § 1182(a)(2)(A)(i)(I)).

Misdemeanor false imprisonment under Cal. Penal Code § 236 is not categorically a CIMT because it “does not require the defendant to have had the intent to harm necessary for the crime to be ‘base, vile, or depraved.’” Saavedra-Figueroa, 625 F.3d at 626. Similarly, “[s]imple kidnapping under [Cal. Penal Code § 207(a) also] does not require an intent to injure, actual injury, or a special class of victims.” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1213 (9th Cir. 2013), overruled on other grounds by Ceron v. Holder, 747 F.3d 773, 782 n.2 (9th Cir. 2014) (en banc). As such, simple kidnapping is not categorically a CIMT. Castrijon-Garcia, 704 F.3d. at 1214 (explaining that the court has held that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim” and holding that simple kidnapping under Cal. Penal Code § 207(a) is not categorically a crime of moral turpitude).

Crime of making threats with intent to terrorize under Cal. Penal Code § 422 is categorically a CIMT. Latter-Singh v. Holder, 668 F.3d 1156, 1161–63 (9th Cir. 2012); cf. Coquico v. Lynch, 789 F.3d 1049, 1055 (9th Cir. 2015) (discussing Latter-Singh, and concluding that a violation of Cal. Penal Code § 417.26, unlawful laser activity, is not categorically a crime involving moral turpitude). Also, in Cervantes v. Holder, 772 F.3d 583 (9th Cir. 2014), the court held that a conviction under California Penal Code § 422 for threatening to commit a crime resulting in death or great bodily injury categorically was a CIMT. Id. at 589.

This court held in Hernandez-Gonzalez v. Holder, 778 F.3d 793, 809 (9th Cir. 2015), that the gang sentencing enhancement under California law did not categorically elevate the petitioner’s conviction for unlawful possession of a weapon to a crime involving moral turpitude.

A robbery conviction under Cal. Penal Code § 211 is a CIMT for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I). See Mendoza v. Holder, 623 F.3d 1299, 1303–04 (9th Cir. 2010).

“Oregon’s first-degree burglary statute, when involving a dwelling, is a ‘crime involving moral turpitude’ under § 1182(a)(2)(A)(i)(I).” Diaz-Flores v. Garland, 993 F.3d 766, 773–74 (9th Cir. 2021) (holding Diaz-Flores was statutorily ineligible for cancellation of removal).

“Petty theft is a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I)[,]” Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008) (per curiam), as is a conviction for credit card fraud in violation of Cal. Penal Code § 532a(1), see Tijani, 628 F.3d at 1075–77 (conviction for using false statements to obtain credit cards in violation of California law were inherently fraudulent). See also Silva v. Garland, 993 F.3d 705, 717 (9th Cir. 2021) (concluding that petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude). However, a conviction for receipt of stolen property under Cal. Penal Code § 496 is not categorically a CIMT. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 2009). Likewise, the court held Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1093 (9th Cir. 2017), “that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude.” Id. (also holding that under the modified categorical approach, the record of conviction was inconclusive, and remanding so the burden of proof question could be resolved, and for the BIA to determine whether Lozano-Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach).

Cal. Vehicle Code § 10851(a), which criminalizes theft and unlawful driving or taking of a vehicle is not categorically a CIMT. Almanza-Arenas v. Lynch, 815 F.3d 469, 476 (9th Cir. 2016) (en banc) (as amended). Likewise, “California’s Vehicle Code § 2800.2 is not categorically a crime of moral turpitude.” Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1307 (9th Cir. 2017).

Prior to the BIA’s decision in In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 849 (BIA 2016), the BIA had held that “a theft offense categorically involves moral turpitude if—and only if—it is committed with the intent to permanently deprive an owner of property.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1294 (9th Cir. 2018) (citation omitted). However, as explained in Garcia-Martinez, the BIA changed the law in Diaz-Lizarraga, holding that “a theft offense is a crime involving moral turpitude if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded[,]” and overruling any prior decisions that required literal intent to permanently deprive an owner of property. Garcia-Martinez, 886 F.3d at 1294 (explaining change of law in Diaz-Lizarraga). The court in Garcia-Martinez held that the new rule expanding the CIMT definition of a theft offense, should not be applied retroactively to petitioner. 886 F.3d at 1294–96 (balancing of interests and basic fairness, indicated the BIA’s new CIMT rule should not be applied to petitioner, where petitioner’s theft offenses in Oregon were not CIMTs at the time petitioner committed them); see also Barbosa v. Barr, 926 F.3d 1053, 1058 (9th Cir. 2019) (as amended) (explaining that although “the BIA recently adopted a more expansive standard for determining whether a theft offense constitutes a CIMT … [b]ecause Petitioner pleaded no contest to the relevant charge before the BIA changed its interpretation, the new standard does not apply retroactively to his case.”).

This court has held the BIA reasonably concluded that a noncitizen’s conviction for knowingly sponsoring or exhibiting an animal in an animal fighting venture under 7 U.S.C. § 2156(a)(1) is a crime involving moral turpitude. Ortega-Lopez v. Barr, 978 F.3d 680, 681 (9th Cir. 2020).

In Moran v. Barr, 960 F.3d 1158, 1164 (9th Cir. 2020), cert. denied sub nom. Moran v. Garland, 141 S. Ct. 2605 (2021), the court held that a violation of California Vehicle Code § 2800.4 (felony vehicular flight from a pursuing police car while driving against traffic) is categorically a crime involving moral turpitude.

See also Barbosa, 926 F.3d at 1058–59 (holding that, although robbery under Oregon Revised Statutes § 164.395 involves a taking of property and the threatened or actual use of force, the minimal force required for conviction is insufficient to label the crime a CIMT); Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (prior conviction in Canada for aggravated assault did not categorically qualify as CIMT); Blanco, 518 F.3d at 718–20 (holding that crime of false identification to a peace officer under Cal. Penal Code § 148.9(a) was not categorically a CIMT); Cerezo v. Mukasey, 512 F.3d 1163, 1166–69 (9th Cir. 2008) (concluding that California conviction for leaving the scene of an accident resulting in bodily injury or death in violation of Cal. Vehicle Code § 20001(a) was not categorically a CIMT).

B. Controlled Substances Offenses

1. Deportation Ground – 8 U.S.C. § 1227(a)(2)(B)(i)

Noncitizens may be removable for drug offenses. See 8 U.S.C. § 1227(a)(2)(B)(i). See also Ruiz-Vidal v. Lynch, 803 F.3d 1049, 1052 (9th Cir. 2015) (“An alien is removable if the government proves by clear and convincing evidence that he’s been convicted of certain offenses “relating to a controlled substance” covered by the Controlled Substances Act.”) This section is broader than the aggravated felony deportation ground since it relates to all controlled substance offenses rather than just illicit trafficking offenses. Compare 8 U.S.C. § 1227(a)(2)(B)(i) with 8 U.S.C. § 1101(a)(43)(B). 8 U.S.C. § 1227(a)(2)(B)(i) provides:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

See also Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (as amended) (“In other words, (1) any alien (2) convicted of a conspiracy under state law (3) relating to a controlled substance as defined under 21 U.S.C. § 802, is deportable.”); Medina v. Ashcroft, 393 F.3d 1063, 1065 (9th Cir. 2005) (Nevada conviction of attempting to be under the influence of THC-carboxylic acid, a controlled substance, was not a removable offense because it came within the statutory exception for possession of 30 grams or less of marijuana).

“[C]onstruction of § 1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of ‘controlled substance,’ for removal purposes, to the substances controlled under § 802.” Mellouli v. Lynch, 575 U.S. 798, 813 (2015). The Supreme Court rejected “the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a § 802 schedule. Instead, to trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the conviction to a drug “defined in [§ 802].” 575 U.S. at 813.

The operative statutory phrase, ‘relating to a controlled substance,’ modifies ‘law or regulation.’ The ordinary meaning of the term ‘relate’ is ‘to show or establish a logical or causal connection between.’ Thus, [the court] look[s] to the language of the statute of conviction to determine whether it establishes a logical or causal connection to a controlled substance as defined in 21 U.S.C.
§ 802, section 102 of the Controlled Substances Act [].

Mielewczyk v. Holder, 575 F.3d 992, 994–95 (9th Cir. 2009) (internal citations omitted); see also Mellouli, 575 U.S. at 811 (“The removal provision is thus satisfied when the elements that make up the state crime of conviction relate to a federally controlled substance.”); Villavicencio, 904 F.3d at 665.

“[S]ection 1227(a)(2)(B)(i) exempts from removability solely those aliens who have (1) committed only one controlled substance offense, where (2) that offense is possession for personal use of less than 30 grams of marijuana.” Rodriguez v. Holder, 619 F.3d 1077, 1079 (9th Cir. 2010) (per curiam) (discussing “personal use exception” of § 1227(a)(2)(B)(i) and holding that it does not apply to noncitizens who have more than one drug conviction). see also Medina, 393 F.3d at 1065 (Nevada conviction of attempting to be under the influence of THC-carboxylic acid, a controlled substance, was not a removable offense because it came within the statutory exception for possession of 30 grams or less of marijuana). “[T]he personal-use exception calls for an inquiry into the specific circumstances surrounding the offense.” Bogle v. Garland, 21 F.4th 637, 642, 646 (9th Cir. 2021) (concluding that circumstances specific to this case clearly established that the amount of marijuana in Bogle’s possession exceeded thirty grams).

See also Lazo v. Wilkinson, 989 F.3d 705, 714 (9th Cir. 2021) (holding that Cal. Health and Safety Code § 11350, possession of a controlled substance, is divisible as to controlled substance, and that petitioner’s conviction documents unambiguously established his conviction was a violation of law “relating to a controlled substance”); Tejeda v. Barr, 960 F.3d 1184, 1188 (9th Cir. 2020) (per curiam) (“Where, as here, the controlled-substance requirement of a state statute [– in this case Cal. Health and Safety Code § 11550(a) – ] is divisible and where, as here, the relevant substance is shown by application of the modified categorical approach to be federally controlled, then there is a direct link between an alien’s crime of conviction and a particular federally controlled drug such that 8 U.S.C. § 1227(a)(2)(B)(i) is satisfied.”); Villavicencio, 904 F.3d at 667 (concluding that petitioner was not removable under 8 U.S.C. § 1227(a)(2)(B)(i) and that N.R.S. §§ 199.480 and 454.351 are overbroad and indivisible, and cannot be used as a predicate offense to support removal); Ruiz-Vidal, 803 F.3d at 1055 (“Because there is clear and convincing evidence in the documents permissible for review that Ruiz-Vidal pleaded to—and was convicted of—possession of methamphetamine, a controlled substance, he is removable.”); Padilla-Martinez v. Holder, 770 F.3d 825, 831–32 n.3 (9th Cir. 2014) (conviction under Cal. Health & Safety Code § 11378 is an aggravated felony under modified categorical approach); Alvarado v. Holder, 759 F.3d 1121 (9th Cir. 2014) (conviction for attempted possession of dangerous drug constituted a violation of state law relating to a controlled substance); Cabantac v. Holder, 736 F.3d 787, 790 (9th Cir. 2013) (as amended) (conviction under Cal. Health & Safety Code § 11377(a) for possession of a controlled substance supported order of removal); Pagayon v. Holder, 675 F.3d 1182, 1189–90 (9th Cir. 2011) (per curiam) (state conviction for possessing methamphetamine constituted a controlled substance offense rendering petitioner removable, where petitioner made a pleading-stage admission to the conviction); Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010) (explaining that a conviction under Cal. Health & Safety Code § 11379 does not necessarily entail a “controlled substance offense” under 8 U.S.C. § 1227 (a)(2)(B)(i)); Retuta v. Holder, 591 F.3d 1181, 1185–89 (9th Cir. 2010) (minute order sufficient to show petitioner pled guilty to charge of possession of a controlled substance, methamphetamine, in violation of Cal. Health & Safety Code § 11377(a), but government failed to prove petitioner was “convicted” because “the definition of ‘conviction’ does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction”).

In the removal context, the government bears the burden of proving that the substance underlying a state law conviction is one covered by § 802 of the Controlled Substances Act (“CSA”). See Ragasa v. Holder, 752 F.3d 1173, 1175 (9th Cir. 2014); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076–77 (9th Cir. 2007) (conviction under California possession statute was not a categorical controlled substance offense because California regulates the possession and sale of many substances not covered by the CSA), abrogated on other grounds by Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011). The government also must demonstrate that the conviction is one “relating to a controlled substance,” although this requirement has been construed broadly. See, e.g., Johnson v. INS, 971 F.2d 340, 342–43 (9th Cir. 1992) (conviction for violation of the Travel Act, 18 U.S.C. § 1952, was a violation of a law relating to a controlled substance); but see Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1153 (9th Cir. 2003) (as amended) (Arizona money laundering offense is not a crime relating to a controlled substance); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona solicitation conviction is not a violation of a law relating to a controlled substance, and is therefore not a deportable offense).

2. Inadmissibility Grounds – 8 U.S.C. § 1182(a)(2)(A)(i)(II) & 8 U.S.C. § 1182(a)(2)(C)

Additional grounds of inadmissibility bar the admission of noncitizens who are convicted of or admit the essential elements of a crime related to a controlled substance or who are controlled substance traffickers. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substance crime), § 1182(a)(2)(C) (controlled substance traffickers); see also Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014); Hernandez-Aguilar v. Holder, 594 F.3d 1069, 1073 (9th Cir. 2010) (holding “that a conviction under § 11379(a), irrespective of whether the underlying offense was solicitation, qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance involved in the conviction is determined to have been a controlled substance under the modified categorical approach.”).

A noncitizen inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) may be granted a waiver of inadmissibility if his conviction was for simple possession of 30 grams or less of marijuana and he can establish that denial of his admission would result in extreme hardship to his United States citizen or lawful permanent resident spouse, parent, son or daughter. See 8 U.S.C. § 1182(h).

V. CATEGORIES OF CRIMINAL OFFENSES THAT ARE GROUNDS OF REMOVABILITY ONLY

A. Aggravated Felony

“Under the INA, any noncitizen who is convicted of an aggravated felony suffers several consequences, such as becoming deportable, inadmissible, and ineligible for cancellation of removal.” Cortes-Maldonado v. Barr, 978 F.3d 643, 647 (9th Cir. 2020) (citing 8 U.S.C. § 1227(a)(2)(A)(iii), § 1182(a)(9)(A)(i)–(ii), and § 1229b(a)(3)). See also Alfred v. Garland, 13 F.4th 980, 985 (9th Cir. 2021) (“An alien convicted of an ‘aggravated felony’ at any time after entering the United States is subject to removal under the INA.”).

Several dozen offenses are categorized as aggravated felonies under 8 U.S.C. § 1101(a)(43). Each crime enumerated in 8 U.S.C. § 1101(a)(43) is an aggravated felony irrespective of whether it violates federal, state, or foreign law. Torres v. Lynch, 578 U.S. 452, 460–62 (2016). See also Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018) (“The INA defines ‘aggravated felony’ by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes.”).

An applicant is removable if convicted of an aggravated felony at any time after admission. See Torres, 578 U.S. at 454 (noncitizen convicted of an aggravated felony after entering the United States is deportable, ineligible for certain discretionary relief, and subject to expedited removal); see also Mero v. Barr, 957 F.3d 1021, 1022 (9th Cir. 2020) (“The Immigration and Nationality Act authorizes the removal of any non-citizen who, after admission to the United States, is convicted of an aggravated felony[.]”); Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir. 2018) (“Any alien who is ‘convicted of an aggravated felony at any time after admission is deportable.’” (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)); Sales v. Sessions, 868 F.3d 779, 784 (9th Cir. 2017) (“Sales’ 1995 conviction of second degree murder as an aider and abettor was an aggravated felony for purposes of the removal proceedings.”); Habibi v. Holder, 673 F.3d 1082, 1085 (9th Cir. 2011) (“Under 8 U.S.C. § 1229b(a)(3), an LPR convicted of an ‘aggravated felony’ is ineligible for cancellation of removal. ‘Aggravated felony’ is defined by 8 U.S.C. § 1101(a)(43)(F) as including a ‘crime of violence ... for which the term of imprisonment [is] at least one year.’”);