UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Nos , GABRIEL ALMANZA-ARENAS, Agency No: A

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1 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 0-, -1 GABRIEL ALMANZA-ARENAS, Agency No: A0--0 Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. PETITIONER S SUPPLEMENTAL BRIEF REGARDING THE EFFECT OF MONCRIEFFE V. HOLDER, NO. -0 (01 MICHAEL J. CODNER MURRAY D. HILTS Attorneys for Petitioner 00 Meade Ave. San Diego, CA (1 - (office (1-1 (fax michael_codner@yahoo.com murrayhiltslaw@hotmail.com

2 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 0-, -1 GABRIEL ALMANZA-ARENAS, Agency No: A0--0 v. Petitioner, ERIC H. HOLDER, JR., United States Attorney General, Respondent. PETITIONER S SUPPLEMENTAL BRIEF REGARDING THE EFFECT OF MONCRIEFFE V. HOLDER, NO. -0 (01 ARGUMENT In Moncrieffe v. Holder, the Supreme Court overruled the Court s holding in Young v. Holder, F.d (th Cir. 01 (en banc, regarding whether a prior criminal conviction can constitute a bar to immigration relief when the record of conviction is inconclusive. Moncrieffe overruled Young in three respects. First, Moncrieffe clarifies that a criminal bar to relief only applies if the statute or record of conviction necessarily indicates that the noncitizen was convicted of the disqualifying crime. Contrary to Young, the record cannot necessarily indicate a disqualifying conviction when it is inconclusive. Second, Moncrieffe demonstrates that the question of whether a noncitizen has been convicted of a disqualifying crime is a legal inquiry. Young thus erred in relying on the fact that a noncitizen bears the burden of proving eligibility for relief; burdens of proof are irrelevant in legal inquiries. Third, Moncrieffe s analysis rests on an understanding that noncitizens who are often detained and without

3 counsel cannot access their conviction records. Young imposes this often impossible burden on noncitizens. I. Under Moncrieffe and Contrary to Young, a Conviction Cannot Be a Bar to Relief Unless the Record of Conviction Necessarily Indicates That the Noncitizen was Convicted of a Disqualifying Crime. Moncrieffe overrules Young s holding about the effect of an inconclusive prior record of conviction on eligibility for relief from removal. Moncrieffe unequivocally holds that the key inquiry in assessing the immigration consequences of a criminal conviction is what the [prior] state conviction necessarily involved, slip op. at, not what acts [the noncitizen] committed, id. at. This is so under Moncrieffe as to both removability and eligibility for relief. See id. at n. ( Our analysis is the same in both contexts.. Because an inconclusive record cannot demonstrate what a prior conviction necessarily involved, Young s holding barring relief eligibility on an inconclusive record is no longer good law. As the Court explained, ambiguity... means that the conviction did not necessarily involve facts that correspond to an offense punishable as a disqualifying crime. Id. at. In the present case, as in Young, the Court considers whether a noncitizen should be ineligible for relief based on a past criminal conviction. Here, as in Young, the statute of conviction has been deemed divisible, contain[ing] several different crimes, each described separately. Id. at. In such cases, the Court applies a modified categorical approach, consulting the record of conviction to determine which particular offense the noncitizen was convicted of and whether that offense matches the immigration bar to relief. See id. at -. Under Moncrieffe, in applying the modified categorical approach, the Court must consider whether the record of conviction necessarily established a disqualifying criminal conviction; the court must presume that the conviction rested upon nothing more than the least of the acts criminalized. Id. at (citations

4 and quotations omitted (emphasis added. When, as here and in Young, see F.d at -, the record of conviction does not conclusively demonstrate a disqualifying conviction, it cannot necessarily indicate that such a conviction occurred. Under Moncrieffe, the bar to relief cannot apply. Confirming this analysis, the Moncrieffe Court explains that, when the government does not succeed in establishing removability based on a prior conviction, the same conviction cannot then serve as a bar to relief from removal. See slip op. at 1 (noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. This is so because, when a conviction does not necessarily indicate a disqualifying conviction one triggering the aggravated felony ground (at issue in Young or the moral turpitude ground (at issue here it cannot necessarily indicate such a conviction for relief purposes. Young s holding to the contrary does not survive Moncrieffe. II. Moncrieffe Overruled Young by Treating the Issue of Whether a Conviction is a Criminal Bar to Relief as a Legal Question to Which the Burden of Proof is Inapplicable. By treating the question of whether a conviction has immigration consequences as a legal inquiry, Moncrieffe effectively rejected Young s heavy reliance on the fact that the noncitizen bears the burden of proving eligibility for relief. See Young, F.d at - (citing U.S.C. 1a(c((A. The burden of proof is not relevant as to legal inquiries. If the record of conviction does not establish, as a legal matter, that an individual was convicted of a disqualifying offense, he is eligible for relief regardless of who bears the burden of proof. Throughout its opinion in Moncrieffe, the Supreme Court treats the application of the categorical rule to convictions at issue in immigration cases as a legal question, and specifically states that this analysis is the same in both the context of removability and relief from removal. Slip op. at n.. As explained

5 above, Moncrieffe focuses on a legal determination that looks at the statute of conviction and then determines from the statutory language what the conviction necessarily involved. Even when the statute of conviction is divisible (in that it includes separately defined crimes, including both removable and non-removable offenses, the Court clarifies that the legal inquiry is limited to a narrow set of documents demonstrating what the criminal court necessarily found. Slip. op at. Contrary to Moncrieffe s reasoning, Young rests its holding on the fact that the noncitizen bears the burden of demonstrating eligibility for relief from removal. See Young, F.d at. But given that the eligibility inquiry as to prior convictions is a legal inquiry, the burden of proof which applies to factual 1 questions is irrelevant. Young s treatment of whether an alien is subject to a criminal bar as a factual question thus directly contradicts Moncrieffe s analysis. III. Young is Fundamentally At Odds With Moncrieffe s Clarification of the Statutory Framework for Removal Proceedings. Young is inconsistent with Moncrieffe s analysis of the statutory framework of removal proceedings. Removal proceedings have two phases. First, the government must produce documents to support a charge of removability. See U.S.C. 1a(c((A. Second, if the immigration court finds the noncitizen removable, the noncitizen presents her case for relief. Moncrieffe confirms that, 1 The burden of proof provision applies to factual inquiries relevant to relief eligibility, such as residency requirements, the existence of qualifying relatives or the authenticity of relevant documents. Applicable regulations provide that, if the evidence indicates that a mandatory bar to relief exists, the noncitizen must prove by a preponderance of the evidence that the mandatory bar does not apply. C.F.R..(d. The preponderance of the evidence standard applies to factual inquiries, see McCormick on Evidence, at (th ed. 00, and has no relevance as to the legal question of whether proffered documents conclusively establish a prior disqualifying conviction.

6 once the government fails to establish that a conviction results in removability as an aggravated felony or a crime involving moral turpitude, that conviction cannot subsequently form the basis of a bar to relief from removal on the same grounds. See slip op. at n.. This framework assumes consistent with immigration regulations that when an immigration court addresses a criminal bar to relief, the government would already have produced documents relating to the criminal bar in its case for removability. See C.F.R..(d (requiring that the evidence indicates that a bar exists before the noncitizen can be deemed subject to the bar; see also Matter of A-A-G-, I. & N. Dec., 01 (B.I.A. 0 (holding the government bears burden under.(d of making prima facie showing that bar to relief exists. Contrary to Young, which places the burden on the noncitizen to obtain records conclusively ruling out a disqualifying conviction, F.d at -0, Moncrieffe explains the often insurmountable burden that noncitizens who are often detained and not represented by counsel face in obtaining records. See slip op. at 1 (obtaining additional criminal records may be impossible for noncitizens who are not guaranteed legal representation and are often subject to mandatory detention... where they have little ability to collect evidence. (citations omitted. The burden that Young places on noncitizens to obtain conclusive records may be practically impossible if due to state-court record keeping practices or the wording of criminal statutes clarifying records simply do not exist. Cf. Moncrieffe, slip op. at 1 ( [T]here is no reason to believe that the state courts will regularly or uniformly admit evidence going to facts... that are irrelevant to the offense charged. ; see also Young, F.d at 1 (Fletcher, Schroeder, Pregerson, Fisher, Paez, Circuit Judges, dissenting in part ( I cannot agree that Congress intended that an application for cancellation of removal be decided on the basis of whether state court records happen to be sufficiently clear to prove a negative.....

7 CONCLUSION For the reasons above, Petitioner respectfully requests the Court to hold that Moncrieffe overruled Young. Based on the foregoing reasons, and in conjunction with the previously-filed briefing, Petitioner respectfully requests this Court reverse the legally and Constitutionally-erroneous holdings of the Board and remand in consideration thereof. Respectfully submitted, LAW OFFICES OF MURRAY D. HILTS DATED: /S/ Michael J. Codner MICHAEL J. CODNER, ESQ. Attorney for Petitioner, GABRIEL ALMANZA-ARENAS

8 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GABRIEL ALMANZA-ARENAS, Docket Nos.: 0-, -1 Agency No.: A0-1- Petitioner, v. CERTIFICATE OF COMPLIANCE ERIC H. HOLDER, JR., Attorney General, Respondent. Pursuant to Ninth Circuit Rule -1 and this Court s order on April 0, 01, I certify that text of Petitioner s Supplemental Brief is monospaced, has. or less characters per inch, and does not exceed 1,00 words. LAW OFFICES OF MURRAY D. HILTS DATED: /S/ Michael J. Codner MICHAEL J. CODNER, ESQ. Attorney for Petitioner, GABRIEL ALMANZA-ARENAS

9 I hereby certify that on UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DECLARATION OF SERVICE , I electronically filed the foregoing PETITIONER S SUPPLEMENTAL BRIEF REGARDING THE EFFECT OF MONCRIEFFE V. HOLDER, NO. -0 (01 in the case of GABRIEL ALMANZA-ARENAS (0--0 v. ERIC H. HOLDER, JR., Attorney General, (Nos. 0-, -1 with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within calendar days to the following non-cm/ecf participants: CAS-District Counsel OFFICE OF THE DISTRICT COUNSEL Department of Homeland Security 0 Front Street San Diego, CA 1- DATED: /S/ Michael J. Codner MICHAEL J. CODNER, ESQ. Attorney for Petitioner, GABRIEL ALMANZA-ARENAS

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