Jose Lozano Arredondo v. Eric Holder, Jr.

Filing

FILED OPINION (WILLIAM A. FLETCHER, RAYMOND C. FISHER and N. RANDY SMITH) GRANTED; REMANDED. Costs are awarded to petitioner. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [10536272]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE GUADALUPE LOZANOARREDONDO,
Petitioner,

No. 11-72422
Agency No.
A098-392-551

v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 7, 2016
Seattle, Washington
Filed August 8, 2017
Before: William A. Fletcher, Raymond C. Fisher
and N. Randy Smith, Circuit Judges.
Opinion by Judge Fisher

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LOZANO-ARREDONDO V. SESSIONS
SUMMARY*

Immigration
The panel granted Lozano-Arredondo’s petition for
review of the Board of Immigration Appeals’ decision
concluding he was ineligible for cancellation of removal
because his conviction for petit theft in Idaho was a crime
involving moral turpitude.
First, the panel held that Lozano-Arredondo’s record of
conviction is inadequate to determine if he was convicted of
a crime involving moral turpitude because the record does not
identify any particular statute of conviction, the Idaho petit
theft statute is not categorically a crime involving moral
turpitude, and the record contained insufficient information
to apply the modified categorical approach. The panel noted
that the effect of this inconclusive record is unclear due to the
open question of whether Young v. Holder, 697 F.3d 976, 989
(9th Cir. 2012) (en banc), remains good law after the
Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct.
1678 (2013). However, the panel declined to reach the
Young-Moncrieffe issue because another panel of this court
has priority to address it. Instead – because the panel was
remanding on another ground – the panel also remanded the
modified categorical approach question to the Board, stating
that once the Young-Moncrieffe issue is resolved by this
court, the Board can apply that law to Lozano-Arredondo’s
conviction.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Second, the panel remanded to the Board the issue of
whether Lozano-Arredondo had been convicted of an
“offense under” 8 U.S.C. § 1227(a)(2)(A)(i), which provides
that an alien “who is convicted of a crime involving moral
turpitude committed within five years . . . after the date of
admission, . . . for which a sentence of one year or longer
may be imposed, is deportable.” The panel declined to defer
to the Board’s published decision in In re Cortez Canales,
25 I. & N. Dec. 301 (BIA 2010), which held that
§ 1227(a)(2)(A)(i) applies regardless of when the offense was
committed, and is not limited to offenses committed within
five years of admission. The panel remanded for the Board
to reconsider its interpretation of the phrase “offense under”
in the cancellation of removal statute.

COUNSEL
Maria Elena Andrade (argued) and Nathaniel J. Damren,
Andrade Legal, Boise, Idaho, for Petitioner.
Gregory A. Pennington, Jr. (argued) and Kathryn M.
McKinney, Trial Attorneys; Anh-Thu P. Mai-Windle and
Kiley Kane, Senior Litigation Counsel; Joyce R. Branda,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.

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OPINION

FISHER, Circuit Judge:
Jose Guadalupe Lozano-Arredondo was denied
cancellation of removal based on his conviction for petit theft
in the State of Idaho. The Board of Immigration Appeals
(BIA) concluded he was ineligible for cancellation because
this conviction qualified as an “offense under” 8 U.S.C.
§ 1227(a)(2). That provision says any alien who “is
convicted of [1] a crime involving moral turpitude
[2] committed within five years . . . after the date of
admission, and . . . [3] for which a sentence of one year or
longer may be imposed, is deportable.” § 1227(a)(2)(A)(i).
Lozano-Arredondo petitions for review, arguing (1) his petit
theft conviction does not qualify as a crime involving moral
turpitude and (2) the crime occurred more than five years
after his admission to the United States, so it does not bar him
from cancellation. We grant the petition and remand.
First, we hold the record of conviction is inadequate to
determine whether Lozano-Arredondo was convicted of a
crime involving moral turpitude. Although the record shows
Lozano-Arredondo was convicted of petit theft, it does not
identify any particular statute of conviction, and Idaho’s petit
theft statute as a whole is overbroad under the categorical
approach. See Almanza-Arenas v. Lynch, 815 F.3d 469, 476
(9th Cir. 2015) (en banc); Castillo-Cruz v. Holder, 581 F.3d
1154, 1159–60 (9th Cir. 2009); Mendoza v. Holder, 623 F.3d
1299, 1302–03 (9th Cir. 2010). Under the modified
categorical approach, the record contains insufficient
information to determine whether Lozano-Arredondo was
convicted under one of the Idaho petit theft provisions

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meeting the generic federal offense. See United States v.
Grisel, 488 F.3d 844, 851–52 (9th Cir. 2007) (en banc).1
The effect of this inconclusive record, however, is
unclear. Under Young v. Holder, 697 F.3d 976, 989 (9th Cir.
2012) (en banc), Lozano-Arredondo bears the burden of
establishing he was not convicted of a crime involving moral
turpitude, and an inconclusive record means he has not
carried this burden. But it is an open question whether Young
remains good law after the Supreme Court’s decision in
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which suggests
Lozano-Arredondo would win under an inconclusive record.
Because another panel of this court has priority to address the
Young-Moncrieffe issue, we do not reach it. Instead –
because we remand on Lozano-Arredondo’s second argument
– we remand the modified categorical approach issue to the
BIA as well. Once the Young-Moncrieffe question is
resolved, the BIA can apply that law to Lozano-Arredondo’s
conviction.
The second issue is whether Lozano-Arredondo is
ineligible for cancellation of removal even though he
committed petit theft more than five years after his admission
to the United States. The BIA concluded he is ineligible in
this circumstance. Relying on its decision in In re Cortez
Canales, 25 I. & N. Dec. 301, 307 (BIA 2010), the BIA held
a conviction qualifies as an “offense under” § 1227(a)(2) if it
involves a crime of moral turpitude punishable by at least a
year in prison – regardless of when the crime was committed.

1

The parties agree the Idaho theft statute is divisible. We therefore
assume without deciding, solely for purposes of this appeal, that the
statute is divisible.

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Although we ordinarily defer to an agency’s reasonable
interpretation of an ambiguous statute, see Chevron U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984),
the BIA’s interpretation of an “offense under” § 1227(a)(2)
is not entitled to deference.2 The BIA erroneously concluded
Congress’ intent had been clearly expressed at Chevron step
one, Cortez Canales, 25 I. & N. Dec. at 308, and thus did not
exercise its “expertise and discretion in interpreting the
statute” at Chevron step two, Gila River Indian Cmty. v.
United States, 729 F.3d 1139, 1149 (9th Cir. 2013). In this
circumstance, rather than interpret the statute ourselves in the
first instance, “we ‘remand to require the agency to consider
the question afresh in light of the ambiguity we see.’” Id. at
1151 (quoting Delgado v. Holder, 648 F.3d 1095, 1103 n.12
(9th Cir. 2011) (en banc)).
BACKGROUND
Lozano-Arredondo entered the United States in August
1990 without being admitted. He was convicted of petit theft
in 1997. In 2005, the Department of Homeland Security
initiated removal proceedings, and Lozano-Arredondo
applied for cancellation of removal under 8 U.S.C.
§ 1229b(b). In 2007, an Immigration Judge (IJ) determined
Lozano-Arredondo was ineligible for cancellation of removal
because he had admitted to committing statutory rape.
The BIA dismissed his appeal on different grounds,
concluding that his petit theft conviction made him ineligible
for cancellation under § 1229b(b)(1)(C). That statute says, in

2

Because the BIA relied on its published decision in Cortez Canales,
we review that decision under Chevron. See Lezama-Garcia v. Holder,
666 F.3d 518, 524–25 (9th Cir. 2011).

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relevant part, “[t]he Attorney General may cancel removal of
. . . an alien who is inadmissible or deportable from the
United States if the alien . . . has not been convicted of an
offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)
of this title.” The BIA determined Lozano-Arredondo’s petit
theft conviction was an “offense under” § 1227(a)(2)(A)(i),
which says:
(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude
Any alien who–
(I) is convicted of a crime involving moral
turpitude committed within five years (or
10 years in the case of an alien provided
lawful permanent resident status under section
1255(j) of this title) after the date of
admission, and
(II) is convicted of a crime for which a
sentence of one year or longer may be
imposed,
is deportable.
Lozano-Arredondo petitioned for review, and we
remanded for the BIA to clarify the statutory basis upon
which it dismissed the appeal. See Arredondo v. Holder,
623 F.3d 1317, 1319–20 (9th Cir. 2010). We concluded “the
BIA [had] not address[ed] the applicability, if any, of the

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exceptions outlined in the respective statutes regarding crimes
involving moral turpitude (i.e., the petty offense exception
[under § 1182(a)(2)] and time period limitations [under
§ 1227(a)(2)(A)(i)]).” Id. at 1320.
On remand, the BIA held in an unpublished decision that
Lozano-Arredondo’s petit theft conviction constituted an
“offense under” § 1227(a)(2) because § 1227(a)(2)’s withinfive-years element does not apply in the cancellation of
removal context. The BIA relied on its published decision in
Cortez Canales, 25 I. & N. Dec. 301, which held a woman’s
welfare fraud conviction made her ineligible for cancellation
of removal under § 1229b(b)(1)(C) because it was an offense
under § 1227(a)(2)(A)(i). Although Cortez Canales did not
commit the offense within five years after admission, the BIA
held, “in determining which offenses are ‘described under’
[§ 1227(a)(2)] for purposes of [§ 1229b(b)(1)(C)], only
language specifically pertaining to the criminal offense, such
as the offense itself and the sentence imposed or potentially
imposed, should be considered.” Cortez Canales, 25 I. & N.
Dec. at 307. The within-five-years element, it held,
“pertain[s] only to aspects of immigration law,” and “is not
considered.” Id.
STANDARD OF REVIEW
We review de novo questions of statutory interpretation.
See Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).

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DISCUSSION
I. Whether Lozano-Arredondo’s conviction qualifies as
a crime involving moral turpitude.
We first address whether Lozano-Arredondo’s petit theft
conviction qualifies as a crime involving moral turpitude
under either the categorical or the modified categorical
approach. “Under the categorical approach, we ask whether
the full range of conduct encompassed by the criminal statute
constitutes a crime of moral turpitude.” Mendoza, 623 F.3d
at 1302 (citation omitted). “If the statute proscribes only
conduct that involves moral turpitude,” the inquiry ends. Id.
at 1303.
When a statute does not satisfy the categorical approach,
we may resort to the modified categorical approach, but only
if the statute is divisible. See Lopez-Valencia v. Lynch,
798 F.3d 863, 868 (9th Cir. 2015). Under the modified
categorical approach, we look to the Shepard documents to
determine whether the person was, in fact, convicted of a
crime involving moral turpitude as defined by federal law.
See Grisel, 488 F.3d at 850. These include the “charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant,” “jury instructions,”
“bench-trial findings and rulings” or “some comparable
judicial record of this information.” Shepard v. United States,
544 U.S. 13, 25–26 (2005).
Here, the record of conviction is inadequate to conclude
Lozano-Arredondo was convicted of a crime involving moral
turpitude under either the categorical or the modified
categorical approach. The only document referencing
Lozano-Arredondo’s petit theft conviction was a “rap sheet,”

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which makes no mention of Lozano-Arredondo’s statute of
conviction.
Nonetheless, the BIA surmised LozanoArredondo was convicted under Idaho Code § 18-2408(3),
which provides “[p]etit theft is a misdemeanor punishable by
a fine not exceeding one thousand dollars . . . or by
imprisonment in the county jail not exceeding one . . . year or
by both.” This punishment statute, standing alone, could not
provide the BIA with enough information about whether
Lozano-Arredondo’s statute of conviction was a crime
involving moral turpitude. A different provision – Idaho
Code § 18-2403 – is the only part of the Idaho Code that
defines the specific acts that constitute theft in Idaho, and this
provision includes acts that would not constitute a crime
involving moral turpitude under federal law because they
could involve only a temporary taking of property. See Idaho
Code § 18-2403(5); Almanza-Arenas, 815 F.3d at 476;
Castillo-Cruz, 581 F.3d at 1159–60. Accordingly, Idaho’s
petit theft statute does not qualify as a crime involving moral
turpitude under the categorical approach.3

3
The BIA’s recent decision in In re Diaz-Lizarraga, 26 I. & N. Dec.
847 (BIA 2016), does not alter our conclusion that § 18-2403 penalizes
conduct falling outside the generic definition of theft. Diaz-Lizarraga
held that generic theft does not require “a literally permanent intended
deprivation.” Id. at 853. Instead, it “requires an intent to deprive the
owner of his property either permanently or under circumstances where
the owner’s property rights are substantially eroded.” Id. at 854. This
definition tracks Idaho’s own definition of the intent required to “‘deprive’
another of property.” Idaho Code § 18-2402(3); see Diaz-Lizarraga, 26 I.
& N. Dec. at 852 & n.5. Nonetheless, Idaho’s theft statute also penalizes
the kinds of temporary takings the BIA continues to place outside of
generic theft – “statutes that . . . encompass ‘joyriding’ . . . or other shortterm takings of property.” Id. at 850.

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We turn, then, to the modified categorical approach.4
Under this approach, we look to the record of conviction to
determine whether Lozano-Arredondo was convicted under
one of the Idaho theft provisions penalizing a permanent
taking of property. Here, that analysis is inconclusive
because nothing in the record identifies the specific part of
Idaho Code § 18-2403 under which Lozano-Arredondo was
convicted. The record contains no charging document,
judgment of conviction, jury instructions, guilty plea or plea
transcript. Cf., e.g., Grisel, 488 F.3d at 851.
Although a rap sheet may form part of the “record of
conviction,” see Kepilino v. Gonzales, 454 F.3d 1057, 1062
(9th Cir. 2006), it is not sufficiently reliable under these
circumstances to be considered under the modified
categorical analysis, see United States v. Leal-Vega, 680 F.3d
1160, 1168–69 (9th Cir. 2012). At best, the rap sheet here is
the equivalent of an “abstract of judgment,” which we have
held can “be used, if it is not the only document that is used
to determine if a prior offense meets the modified categorical
approach.” Id. at 1168 (emphasis added). The rap sheet
presented in this case does not “contain[] any detail . . . or any
usable information about the factual basis for [LozanoArredondo’s] conviction,” or the provision under which he
was convicted. See Kepilino, 454 F.3d at 1062. To the
contrary, the rap sheet does not even cite any provision of
Idaho law. As a result, the record is inconclusive as to which
theft provision Lozano-Arredondo was convicted under, and
the BIA erred in finding that Lozano-Arredondo was

4

Lozano-Arredondo conceded in his opening brief that the Idaho theft
statute is divisible, and he did not contend otherwise before the BIA. To
be clear, we do not hold that the statute is divisible. We reserve that issue
for another case in which the parties raise it.

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convicted of a particular theft offense that qualified as a
crime involving moral turpitude.
The ultimate effect of this inconclusive record, however,
is unclear. Under Young, 697 F.3d at 989, the petitioner bears
the burden of proving he was not convicted of a crime
involving moral turpitude. Young holds that where, as here,
the record of conviction is inconclusive, the petitioner has not
met that burden. See id. Thus, to the extent Young remains
good law, Lozano-Arredondo has not met his burden to
establish he was not convicted of a crime involving moral
turpitude.
The continuing viability of Young, however, is an open
question after the Supreme Court’s decision in Moncrieffe,
133 S. Ct. 1678, which suggests an inconclusive record works
to a petitioner’s advantage, regardless of which party bears
the burden of proof. See Almanza-Arenas, 815 F.3d at
488–89 (Watford, J., concurring). The question whether
Moncrieffe abrogated Young’s burden rule is pending before
another panel of this court that has priority.
See
Marinelarena v. Sessions, No. 14-72003; Ninth Circuit
General Order 4.1(a). We therefore do not reach it here.
Instead – because we remand on another ground, as discussed
below – we remand the modified categorical approach
question to the BIA as well. Once the mandate has issued in
Marinelarena, the BIA can apply that law to LozanoArredondo’s conviction.
In sum, with respect to Lozano-Arredondo’s argument
that his petit theft conviction does not qualify as a crime
involving moral turpitude, we hold Idaho’s petit theft statute
is categorically overbroad because it penalizes temporary
takings. We also hold that under the modified categorical

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approach, the record of conviction is inconclusive. For now,
the effect of that inconclusive record is an unresolved
question, and our analysis can go no further. Once that
question is decided, the BIA can apply the governing law to
determine whether Lozano-Arredondo’s conviction qualifies
as a crime involving moral turpitude.
II. Whether a conviction for a crime involving moral
turpitude precludes cancellation of removal even if the
offense was committed more than five years after
admission.
Assuming Lozano-Arredondo was convicted of a crime
involving moral turpitude, we next must decide whether this
conviction constitutes an “offense under” § 1227(a)(2)(A)(i)
even though he was not convicted within five years of
admission. See § 1229b(b)(1)(C). Section 1227(a)(2)(A)(i)
says any alien who “is convicted of [1] a crime involving
moral turpitude [2] committed within five years . . . after the
date of admission, . . . [3] for which a sentence of one year or
longer may be imposed, is deportable.” § 1227(a)(2)(A)(i).
The BIA concluded Lozano-Arredondo’s petit theft
conviction was an “offense under” § 1227(a)(2)(A)(i),
because it was a crime involving moral turpitude for which a
sentence of one year could be imposed. It is undisputed,
however, that Lozano-Arredondo’s conviction occurred more
than five years after his date of admission. The BIA did not
consider this relevant, relying on its decision in Cortez
Canales.
The central question is thus whether § 1229b(b)(1)(C)
incorporates the within-five-years element of
§ 1227(a)(2)(A)(i). If it does, then Lozano-Arredondo is
eligible for cancellation of removal, because his petit theft

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conviction did not occur within five years of his admission to
the United States. If it does not, as the BIA held in Cortez
Canales, then his petit theft conviction may make him
ineligible for cancellation.
Under Chevron, the BIA is entitled to deference in
interpreting ambiguous provisions of the INA.5 “Judicial
deference in the immigration context is of special importance,
for executive officials ‘exercise especially sensitive political
functions that implicate questions of foreign relations.’”
Negusie v. Holder, 555 U.S. 511, 517 (2009) (quoting INS v.
Abudu, 485 U.S. 94, 110 (1988)). This deference does not
apply, however, “where an agency mistakenly determines that
its interpretation is mandated by plain meaning, or some other
binding rule.” Gila River Indian Cmty., 729 F.3d at 1149. In
such a circumstance, the agency has “not yet exercised its
Chevron discretion to interpret the statute in question.”
Negusie, 555 U.S. at 523. Accordingly, even if its
interpretation “might ultimately be reasonable,” it is not
entitled to deference. Gila River Indian Cmty., 729 F.3d at
1149. When an agency erroneously concludes Congress’
intent is clear under step one, and has rested on that ground,
we remand for the agency to exercise its expertise and
discretion to interpret the statute under step two. See
Delgado, 648 F.3d at 1103–04 & n.12.

5

Under the “two-step framework . . . set forth in [Chevron], . . . we
[first] determine whether the intent of Congress is clear. If it is, both the
court and the agency must give effect to the unambiguously expressed
intent of Congress.” Marmolejo-Campos v. Holder, 558 F.3d 903, 908
(9th Cir. 2009) (en banc). (citations and internal quotation marks
omitted). “If, however, the text is ambiguous, the court proceeds to step
two and considers whether the agency’s interpretation was . . .
‘reasonable.’” Adams v. U.S. Forest Serv., 671 F.3d 1138, 1143 (9th Cir.
2012) (quoting Chevron, 467 U.S. at 845).

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Here, the BIA’s decision is unpublished and thus not itself
entitled to Chevron deference, but its interpretation of
“offense under” § 1227(a)(2) in the published Cortez Canales
decision is reviewed under Chevron. See Lezama-Garcia,
666 F.3d at 524–25. In Cortez Canales, the BIA did not
exercise its discretion to interpret § 1229b(b)(1)(C). Instead,
the BIA concluded Congress’ intent was “clear” from the
“plain meaning” of the statute. Cortez Canales, 25 I. & N.
Dec. at 308. It also said its decision “clearly follows” from
Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004).
Id. We disagree.
A. Statutory Language
The language of § 1229b(b)(1)(C) is susceptible to several
interpretations. Section 1229b(b)(1)(C) incorporates an
“offense under” § 1227(a)(2). Section 1227(a)(2), though, is
not a criminal statute; an alien cannot be convicted under it.
See Gonzalez-Gonzalez, 390 F.3d at 652.
Instead,
§ 1227(a)(2) lists conduct that makes an alien deportable, i.e.,
“deportable offenses.”
The deportable offenses in
§ 1227(a)(2) are criminal offenses committed under specified
circumstances. The deportable offense at issue here is a kind
of criminal offense – a crime involving moral turpitude –
committed within five years after admission, for which a
sentence of one year or longer may be imposed. See
§ 1227(a)(2)(A)(i).
Section 1229b(b)(1)(C) simply incorporates an “offense
under” § 1227(a)(2). It does not say whether it incorporates
the entire deportable offense or only part of it. From the
language of the statute, the “offense under”
§ 1227(a)(2)(A)(i) could include: (1) only the criminal
offense itself – a crime involving moral turpitude; (2) the

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criminal offense plus one additional element of the deportable
offense (i.e., the criminal offense plus either the within-fiveyears limitation or the sentence-length limitation); or (3) all
three elements of the deportable offense.
The statutory language, therefore, is ambiguous on its
face.
B. The Scope of Gonzalez-Gonzalez
Gonzalez-Gonzalez did not resolve this ambiguity. There,
the petitioner was convicted of a crime of domestic violence
described under § 1227(a)(2)(E)(i). Based on this conviction,
the BIA concluded Gonzalez-Gonzalez was ineligible for
cancellation of removal. Section 1227(a)(2), however,
describes “deportable offenses,” whereas Gonzalez-Gonzalez
– who had entered the country illegally – was inadmissible,
rather than deportable. Gonzalez-Gonzalez thus argued a
conviction that fell under § 1227(a)(2) could not render him
ineligible for cancellation, because as an inadmissible alien,
he could not be convicted of an “offense under” a provision
describing only deportable offenses.
Gonzalez-Gonzalez rejected this argument. We held that
although certain offenses described in the statutes crossreferenced by § 1229b(b)(1)(C) render admitted aliens
deportable, while others render non-admitted aliens
inadmissible, all offenses described in the statutes apply to all
aliens – regardless of admission status – for purposes of
§ 1229b(b)(1)(C)’s bar on cancellation of removal. We
concluded “[t]he most logical reading of ‘convicted of an
offense under’ is . . . ‘convicted of an offense described
under’ each of the three sections.” 390 F.3d at 652. We held
Gonzalez-Gonzalez’s domestic violence conviction was

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“described under” § 1227(a)(2), even though, as an
inadmissible alien, he was not deportable. Id. at 652–53.
In Cortez Canales, the BIA incorrectly relied on
Gonzalez-Gonzalez in concluding an “offense under”
§ 1227(a)(2)(A)(i) does not include that provision’s withinfive-years element. The BIA held its “decision to exclude the
immigration-related provisions [i.e., the within-five-years
element,] . . . clearly follows from [Gonzalez-Gonzalez’s]
conclusion that the plain language of [§ 1229b](b)(1)(C) . . .
should be read to cross-reference a list of offenses in three
statutes, rather than the statutes as a whole.” Cortez Canales,
25 I. & N. Dec. at 308.
In holding an inadmissible alien could commit the offense
under § 1227(a)(2)(E)(i), however, Gonzalez-Gonzalez did
not foreclose treating the within-five-years element of
§ 1227(a)(2)(A)(i) as part of the offense for purposes of
determining eligibility for cancellation of removal. Indeed,
Gonzalez-Gonzalez did not in any way address the provision
parallel to the one at issue in this case – whether the domestic
violence offense described under § 1227(a)(2)(E)(i) includes
that provision’s “any time after admission” element for
purposes of cancellation of removal. Accordingly, GonzalezGonzalez does not bear on whether § 1229b(b)(1)(C)
incorporates the within-five-years element of
§ 1227(a)(2)(A)(i).
C. Related Provisions and Legislative History
In addition to incorrectly relying on the statute’s plain
meaning and Gonzalez-Gonzalez, the BIA wrongly concluded
Congress’ intent could be clearly discerned by comparing
§ 1229b(b)(1)(C) with a related provision, § 1229b(d)(1).

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Section 1229b(d)(1) says, for purposes of cancellation of
removal, “any period of continuous residence or continuous
physical presence in the United States shall be deemed to end
. . . when the alien has committed an offense . . . that renders
the alien . . . removable from the United States under section
1227(a)(2).” § 1229b(d)(1) (emphasis added). Section
1229b(b)(1)(C), by contrast, makes an alien ineligible for
cancellation if he has been convicted of an offense under
§ 1227(a)(2), without reference to whether that offense
renders the alien removable under § 1227(a)(2). The BIA
held the absence of language in § 1229b(b)(1)(C) requiring
the alien to be removable under § 1227(a)(2) shows Congress
did not intend to require the “immigration-related elements”
of § 1227(a)(2) to be satisfied for an alien to be ineligible for
cancellation of removal. Cortez Canales, 25 I. & N. Dec. at
308.
The legislative history of § 1229b(b)(1)(C) undermines
the BIA’s reasoning. That history indicates Congress
understood § 1229b(b)(1)(C) to incorporate all elements of
the deportable offenses under § 1227(a)(2). The House
Conference Report on the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 described
§ 1229b(b)(1) by saying:
Section [1229b](b)(1) provides that the
Attorney General may cancel removal in the
case of an alien who . . . has at no time been
convicted of an offense that would render the
alien inadmissible under [§ 1182(a)(2)(A)] or
deportable under [§ 1227](a)(2).

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H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.) (emphasis
added).6
An alien is deportable under § 1227(a)(2)(A)(i) only if he
committed a crime involving moral turpitude within five
years after admission. Thus, the Conference Report
contradicts the BIA’s interpretation of the statute and
undermines the distinction the BIA drew between
§ 1229b(b)(1)(C) and (d)(1). See Garcia v. United States,
469 U.S. 70, 76 (1984) (holding Committee Reports are an
“authoritative source for finding the Legislature’s intent”);
see also Samantar v. Yousuf, 560 U.S. 305, 316 n.9, 323
(2010) (considering the House Committee Report in
interpreting the Foreign Sovereign Immunities Act); BedRoc
Ltd., LLC v. United States, 541 U.S. 176, 187 n.8 (2004)
(resort to legislative history is permissible when the statutory
text is ambiguous).7

6

Gonzalez-Gonzalez appears in dictum to have misinterpreted the
House Conference Report, saying the excerpt we quote here was an earlier
version of the bill, rather than the committee’s description of the meaning
of the final version of the bill. See Gonzalez-Gonzalez, 390 F.3d at
652–53. The quoted text appears in the House Conference Committee’s
“Joint Explanatory Statement,” describing the meaning of the version of
the bill set forth earlier in the report. See H.R. Rep. No. 104-828, at 199.
The text of that bill is identical to the statute that was enacted. Compare
id. at 48, with § 1229b(b)(1)(C).
7
To the extent the Fifth Circuit in Nino v. Holder, 690 F.3d 691, 697
(5th Cir. 2012), similarly relied on the difference between the two
provisions to reach the same conclusion as the BIA, the House Conference
Report, which the Fifth Circuit did not address, undermines its reasoning
as well.

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D. Within Five Years of “Admission”

Although none of the BIA’s stated rationales justifies its
interpretation at Chevron step one, an alternate textual ground
might support the BIA’s conclusion that § 1229b(b)(1)(C)
does not incorporate the within-five-years element of
§ 1227(a)(2)(A)(i) – albeit the government has not so argued
here. Section 1227(a)(2)(A)(i) says the crime must have
occurred “within five years . . . after the date of admission.”
(emphasis added). The term “admission” has a defined
meaning in the immigration context, referring to “the lawful
entry of [an] alien into the United States after inspection and
authorization by an immigration officer.” Garcia v. Holder,
659 F.3d 1261, 1267 (9th Cir. 2011) (alteration in original)
(quoting 8 U.S.C. § 1101(a)(13)(A)). Some aliens seeking
cancellation of removal – like Lozano-Arredondo – are never
“admitted” under that definition. Thus, if § 1229b(b)(1)(C)
incorporates the within-five-years element, aliens like
Lozano-Arredondo arguably could never be deemed
ineligible for cancellation under § 1227(a)(2)(A)(i).
Although this result would be contrary to our holding in
Gonzalez-Gonzalez that offenses under § 1227(a)(2) do apply
to non-admitted aliens in the cancellation context, one way to
avoid a conflict would be to exclude – as the BIA did – the
within-five-years element from the “offense under”
§ 1227(a)(2)(A)(i).
That is not the only option, however. The BIA’s
approach altogether disregards the House Conference
Committee Report, which evidences Congress’ intent to
incorporate the within-five-years element. Additionally, as
we held in Gonzalez-Gonzalez, 390 F.3d at 652–53, Congress
expected § 1227(a)(2) would apply to non-admitted aliens in
the cancellation context, even though its text says it applies

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only to aliens “in and admitted to the United States.”
§ 1227(a). Given the legislative history and our decision in
Gonzalez-Gonzalez to interpret § 1227(a)(2) broadly enough
to apply to admitted and non-admitted aliens alike, there is a
more consistent way to reconcile the statutory language: to
likewise afford “admission” a broader meaning in this
context, one that encompasses both admitted and nonadmitted aliens. Lozano-Arredondo, for example, suggests
the word should be read to mean physical “entry” when
applied to an alien who has not been “admitted” in the
§ 1101(a)(13)(A) sense of the word.
Lozano-Arredondo’s reading has several advantages over
strictly employing a § 1101(a)(13)(A) definition of admission
in this context. Applying a reasonable, context-specific
meaning to “admission” would give effect to each word in the
statute, rather than reading out its “within five years”
language. It would also comport with both the legislative
history and Gonzalez-Gonzalez. Otherwise, using the
§ 1101(a)(13)(A) definition requires ignoring either the
legislative history or our holding in Gonzalez-Gonzalez that
§ 1227(a)(2) applies both to admitted and non-admitted
aliens. Moreover, we have deviated from the ordinary
immigration definition of “admission” in the past to make
sense of the statutory scheme under § 1227(a)(2) – albeit in
a different context. See Ocampo-Duran v. Ashcroft, 254 F.3d
1133, 1134–35 (9th Cir. 2001) (expanding the definition of
admitted under § 1227(a)(2) to include an alien who entered
the country illegally and thus was never admitted under
§ 1101(a)(13)(A), but later adjusted his status to lawful
permanent resident). The BIA also has been willing to go
beyond the § 1101(a)(13)(A) definition of admission in
interpreting § 1227(a)(2)’s use of that word. See Fuentes v.
Lynch, 837 F.3d 966, 968 (9th Cir. 2016); In re Rosas-

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Ramirez, 22 I. & N. Dec. 616, 617–18 (BIA 1999) (deeming
an individual admitted notwithstanding her lack of admission
under the 8 U.S.C. § 1101(a)(13)(A) definition). Reading
“admission” to mean “entry” in this context is thus a
plausible resolution of the statutory text.
Although we conclude this resolution makes sense, we are
not yet prepared to hold it is the only reasonable
interpretation. We acknowledge this approach is imperfect
because it goes beyond the ordinary immigration definition of
admission. We therefore decide only that the inclusion of the
word “admission” as part of the within-five-years element
does not compel the conclusion that Congress intended to
exclude this element from the “offense under”
§ 1227(a)(2)(A)(I).
In sum, the statute is ambiguous. The BIA erred at
Chevron step one by concluding Congress clearly intended
not to incorporate the within-five-years element of
§ 1227(a)(2)(A)(i).
E. The BIA Has Not Reached Chevron Step Two
Because the BIA “misapprehended the clarity of the
statute,” misapplied Gonzalez-Gonzalez, and failed to
consider the on-point legislative history, it also did not
exercise its “expertise and discretion in interpreting the
statute” at Chevron step two. Gila River Indian Cmty.,
729 F.3d at 1149. We recognize the BIA said “even if the
language of [§ 1229b(b)(1)(C)] were found to be ambiguous,
we would interpret it in the same manner.” Cortez Canales,
25 I. & N. Dec. at 308. But this “one-sentence caveat” is “not
entitled to Chevron deference, because the [agency] did not
provide any explanation for this decision.” Gila River Indian

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Cmty., 729 F.3d at 1150. Instead, “the passing [comment]
reflects ‘that the [agency] has not yet exercised its Chevron
discretion to interpret the statute in question.’” Id. (quoting
Negusie, 555 U.S. at 523). “[D]eferring to the [agency’s]
unexplained caveat would permit the agency to sidestep its
duty to bring its expertise to bear on the ‘difficult policy
choices’ it is tasked with making.” Id.
The BIA’s construction of § 1229b(b)(1)(C) is thus not
entitled to Chevron deference. The BIA erred by treating
§ 1229b(b)(1)(C) as unambiguous at step one, and it has not
yet exercised its discretion at step two. We therefore set
aside the BIA’s interpretation of § 1229b(b)(1)(C) in Cortez
Canales.
III. Conclusion
We grant Lozano-Arredondo’s petition and remand to the
BIA. We hold, first, that petit theft under Idaho law does not
qualify categorically as a crime involving moral turpitude.
We also hold that under the modified categorical approach,
the record of conviction is inconclusive. Because the effect
of that inconclusive record presents an open legal question
now pending before another panel of this court, our analysis
ends there. On remand, once this burden of proof question is
resolved, the BIA should determine whether LozanoArredondo’s conviction qualifies as a crime involving moral
turpitude under the modified categorical approach, unless the
case is resolved on other grounds.
Second, we hold the BIA erred by deciding at Chevron
step one that an “offense under” § 1227(a)(2)(A)(i) does not
include the within-five-years element. Because the BIA
“erroneously contends that Congress’ intent has been clearly

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expressed and has rested on that ground, we remand to
require the agency to consider the question afresh.” Delgado,
648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523)
(internal quotation marks omitted); see INS v. Ventura,
537 U.S. 12, 16–17 (2002). In light of this holding and the
explanations we have given, the BIA must reconsider its
interpretation of the phrase “offense under” in
§ 1229b(b)(1)(C).
PETITION GRANTED AND CASE REMANDED.
Costs are awarded to petitioner.