In the Ninth Circuit, an Inconclusive Record of Conviction May Allow You to Apply for Immigration Relief

In a recent Ninth Circuit case, Almanza-Arenas v. Holder, the Panel held that where an individual who was convicted of a divisible statute and whose record of conviction - which could include a plea agreement, colloquy transcript, statutory elements, charging documents, and any explicit factual findings to which the defendant agreed - is inconclusive as to whether a convicted crime was one involving moral turpitude, the individual does not have to show that he is affirmatively eligible for relief and that instead, that individual is not ineligible for such relief, such as cancellation of removal.  In so doing, the Ninth Circuit overruled Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).

How to know if Almanza-Arenas can help your case:

  1. Were you convicted of a crime?  If not, stop here, Almanza-Arenas probably does not apply to your case.
  2. Do the elements of the crime constitute an aggravated felony, a crime involving moral turpitude, or another category that makes you ineligible for immigration relief under the “categorical approach”?  If not, stop here, Almanza-Arenas probably does not apply to your case.
  3. Is the statute that you were convicted of divisible, or does it contain “multiple, alternative elements of functionally separate crimes,” rather than “multiple, alternative means of committing” the same crime?  If not, stop here, the modified categorical approach does not apply to you per Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). 
  4. Does the divisible statute include a crime that is not one involving moral turpitude, or an aggravated felony, or some other category that would disqualify you from obtaining immigration relief?  If not, stop here, Almanza-Arenas probably does not help you.
  5. If the divisible statute includes a crime that, if convicted, would allow you to be eligible for immigration relief, then look to whether the record of conviction to determine one of the following:
    • That it conclusively establishes that you were convicted of the elements for the lesser crime; or
    • That, as in Almanza-Arenas, it does not conclusively establish which crime you were convicted of within the divisible statute.
  6. If you can establish either of the above conditions in (5), then you are likely not ineligible for some form of immigration relief.  Of course, it is important to consult with an immigration attorney to help you in your specific case.

This ruling provides consistency and predictability for immigrants. Though there are other lessons to be learned from Almanza-Arenas, the main import of the case is that for the first time the Ninth Circuit’s applied Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and thereby changes the way that IJs and the BIA assess whether someone is eligible for immigration relief within the Ninth Circuit’s jurisdiction, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the Northern Mariana Islands, and Guam.  

The full citation to the case is Almanza-Arenas v. Holder, No. 09-71415, 2014 WL 5801416, --- F.3d ----  (9th Cir. Nov. 10, 2014).  To read it, click here