- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 11-10-2014
- Case #: 10-71415;10-73715
- Judge(s)/Court Below: Circuit Judge Pregerson for the Court; Circuit Judge Fisher; District Judge Gwin
- Full Text Opinion
Gabriel Almanza-Arenas ("Almanza-Arenas"), a native and citizen of Mexico, entered a plea of nolo contendere in September of 2002 to a misdemeanor violation of California Vehicle Code § 10851(a). "§ 10851(a) punishes both automobile theft (which is a crime of moral turpitude), and joyriding (which is not a crime of moral turpitude). The California Superior Court sentenced Almanza-Arenas to twenty-four days in county jail." In January of 2005, Almanza-Arenas was taken into custody by US Customs and Border Protection and served with notice to appear. Almanza-Arenas conceded removeability and petitioned for cancellation of removal. The Immigration Judge ("IJ") denied petition for cancellation and the Board of Immigration Appeals ("BIA") dismissed Almanza-Arenas' petition on the grounds that Almanza-Arenas had not met her burden to establish that she was eligible for cancellation of removal. The Ninth Circuit held that "where an alien is convicted under a divisible criminal statute, and may have been convicted of a lesser crime that did not include an element of moral turpitude, we err on the side of underinclusiveness by not disqualifying the alien from cancellation of removal, because ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen’s favor.” The panel found that the statute of conviction criminalized conduct which was both a crime involving moral turpitude and not and because the record of conviction was inconclusive the petitioner met her burden to establish that she was eligible for cancellation of removal. The petition is hereby GRANTED, and this matter is REMANDED to the BIA for further proceedings.