Aracely Marinelarena v. MERRICK B. GARLAND, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARACELY MARINELARENA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 14-72003
Agency No.
A095-731-273
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 29, 2021
Pasadena, California
Filed July 26, 2021
Before: A. Wallace Tashima, Barry G. Silverman, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Tashima

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MARINELARENA V. GARLAND 2
SUMMARY*
Immigration
Denying Aracely Marinelarena’s petition for review of
the Board of Immigration Appeals’ denial of cancellation of
removal, the panel: 1) incorporated by reference its prior
holdings, in Marinelarena v. Sessions (“Marinelarena I”),
869 F.3d 780 (9th Cir. 2017), that conspiracy under
California Penal Code (“CPC”) § 182(a)(1), is overbroad but
divisible as to the target crime, and that sale and transport of
a controlled substance under California Health and Safety
Code § 11352, is overbroad and divisible as to controlled
substance; 2) concluded that Pereida v. Wilkinson, 141 S. Ct.
754 (2021), is consistent with Marinelarena I, and that
Petitioner failed to establish that her conviction did not
involve a federally controlled substance; 3) declined
Petitioner’s invitation to remand to present additional
evidence; and 4) reaffirmed its conclusion that a conviction
expunged under CPC § 1203.4 remains a “conviction” for
federal immigration purposes.
In Marinelarena I, the panel upheld the BIA’s denial of
cancellation of removal but, rehearing the case en banc, the
court granted the petition for review. Subsequently, the
Supreme Court decided Pereida, which held that, when a
statute places the burden of proof on an applicant for
immigration relief to show the absence of a disqualifying
conviction, and the applicant stands convicted under a
divisible statute that includes some offenses that are
* 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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MARINELARENA V. GARLAND 3
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. The Court granted the petition for
certiorari in this case and remanded proceedings to the en
banc court, which in turn remanded the matter to the original
panel.
The panel incorporated by reference the portions of
Marinelarena I relating to the factual and procedural
background, the standard of review, and the discussion of
overbreadth and divisibility. The panel also supplemented
that material with the following observations and holdings.
As to divisibility, the panel noted that no developments in
the California Supreme Court since Marinelarena I
undermined the panel’s earlier divisibility analysis, and
declined Petitioner’s invitation to certify a question to that
court. The panel also noted that the jury instructions relating
to the conspiracy offense, as well as Petitioner’s underlying
statute of conviction, support divisibility.
As to burden of proof, the panel explained that
Marinelarena I is consistent with the Supreme Court’s
decision in Pereida and, for the reasons explained in its
original opinion, the panel concluded that Petitioner failed to
establish that her conviction did not involve a federally
controlled substance.
The panel declined Petitioner’s invitation to remand for
her to present additional evidence regarding the controlled
substance. First, the panel explained that Petitioner never
argued earlier that her conviction involved a non-
disqualifying controlled substance. Second, the panel

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MARINELARENA V. GARLAND 4
explained that it was clear from documents outside the scope
of Shepard v. United States, 544 U.S. 13 (2005), that the
offense involved was heroin, a federally controlled substance.
Third, the panel explained that Petitioner declined the
immigration judge’s requests to provide additional documents
related to her conviction, and that the panel’s task was to
review the record that was made. The panel also rejected
Petitioner’s argument that she should have an opportunity to
testify before an immigration judge concerning the drug
involved, observing that Petitioner had had that opportunity,
and that she could have raised such arguments before this
court. Thus, the panel concluded that the usual rule that this
court gives the agency the first chance to apply a new
evidentiary standard on remand did not apply.
Finally, the panel concluded that no developments in the
relevant precedents, since Marinelarena I, undermined the
panel’s conclusion that a conviction expunged under CPC
§ 1203.4 remains a “conviction” for federal immigration
purposes.
Concurring in part and dissenting in part, Judge Tashima
concurred in the majority’s holdings on divisibility and
expungement. He disagreed, however, with the decision to
deny Marinelarena’s request to remand to the BIA. Judge
Tashima observed that, in Pereida, the Supreme Court
rejected Ninth Circuit and BIA precedent and held for the
first time that an applicant for cancellation of removal may
rely on a broad range of testimonial and documentary
evidence to show that she was not convicted of a
disqualifying offense. Judge Tashima would grant
Marinelarena an opportunity to show, under this new
evidentiary standard, that her California conviction does not
constitute a controlled substance offense.

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MARINELARENA V. GARLAND 5
COUNSEL
Benjamin P. Chagnon (argued), Robert M. Loeb, and Thomas
M. Bondy, Orrick Herrington & Sutcliffe LLP, Washington,
D.C.; Brian P. Goldman, Orrick Herrington & Sutcliffe LLP,
San Francisco, California; Andrew Knapp, Southwestern Law
School, Los Angeles, California; for Petitioner.
Tim Ramnitz (argued), Attorney; Patrick J. Glen, Senior
Litigation Counsel; John W. Blakeley, Assistant Director;
Brian M. Boynton, Acting Assistant Attorney General; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
GRABER, Circuit Judge:
This case comes before our court for the third time. In
Marinelarena v. Sessions (“Marinelarena I”), 869 F.3d 780
(9th Cir. 2017), we upheld the Board of Immigration
Appeals’ (“BIA”) denial of Petitioner Aracely Marinelarena’s
application for cancellation of removal. Rehearing the case
en banc, the court granted the petition for review on the sole
ground that, because the record of Petitioner’s state-law
conviction was ambiguous, she was not “necessarily”
convicted of conspiring to sell and transport a controlled
substance as defined under federal law and thus was not
barred from relief under 8 U.S.C. § 1229b(b). Marinelarena
v. Barr, 930 F.3d 1039, 1054 (9th Cir. 2019) (en banc). The
Supreme Court of the United States subsequently decided
Pereida v. Wilkinson, 141 S. Ct. 754, 762–63 (2021), which
clarified the effect of an ambiguous record when the relevant

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MARINELARENA V. GARLAND 6
statute places the burden of proof on an applicant for
immigration relief to show the absence of a disqualifying
conviction. The Court held that, when 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. Id. at 762–63.
Following Pereida, the Court granted the government’s
petition for certiorari in this case and remanded proceedings
to the en banc court, Wilkinson v. Marinelarena, 141 S. Ct.
1512 (2021) (mem.), which in turn has remanded the matter
to the original panel, Marinelarena v. Garland, 992 F.3d
1143 (9th Cir. 2021) (en banc) (mem.). We now deny the
petition for review.
We incorporate by reference the following portions of the
original panel opinion: the factual and procedural
background, Marinelarena I, 869 F.3d at 783–84; the
standard of review, id. at 785; and Part A of the discussion,
which concerns overbreadth and divisibility, id. at 785–88.
We also supplement that material with the following
observations and holdings.
A. Divisibility
No developments in the California Supreme Court in the
years since our 2017 opinion undermine our earlier analysis
of divisibility. Because we conclude that the California
Supreme Court has provided clear direction, we decline
Petitioner’s invitation to certify a question to that court.

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MARINELARENA V. GARLAND 7
We also note that a judge, in instructing a California jury
on a conspiracy charge, must direct the jury to the elements
of the underlying crime. Jud. Council of Cal. Crim. Jury
Instr. No. 415 (2014) (hereinafter “CALCRIM”). In turn, the
jury instruction concerning the underlying crime of
Petitioner’s conviction supports divisibility by requiring the
judge to identify, and the jury to find, a specific drug:
The defendant is charged [in Count __ ] with
(selling/furnishing/administering/giving
away/transporting for sale/importing)_______
<insert type of controlled substance>, a
controlled substance, [in violation of
____________ <insert appropriate code
section[s]>].
CALCRIM No. 2300 (emphasis added) (bracketed material
in original). Moreover, if the particular controlled substance
at issue in the prosecution is not listed in certain statutory
schedules, the judge must require the jury to name the
specific type of controlled substance and to find whether it is
an analog of a listed controlled substance. Id.
B. Burden of Proof
The Supreme Court’s decision in Pereida rejected the
analysis of the en banc court in Marinelarena and is
consistent with the panel majority’s original decision. See
Marinelarena I, 869 F.3d at 789 (“It is well established that
the party who bears the burden of proof loses if the record is
inconclusive on the crucial point.”). For the reasons
explained in our original opinion, Petitioner failed to establish
that her conviction did not involve a federally controlled
substance. See 8 U.S.C. § 1229a(c)(4)(A)(i) (providing that

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MARINELARENA V. GARLAND 8
an applicant for relief from removal “has the burden of proof
to establish that” he or she “satisfies the applicable eligibility
requirements”).
We decline Petitioner’s invitation to remand this case for
the purpose of presenting additional evidence. First, in the
seven years this case has been in our court, Petitioner has
never argued that her conviction involved a non-disqualifying
controlled substance. Instead, she always has maintained that
she prevails simply because of the ambiguity in her record of
conviction. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th
Cir. 2011) (holding that the petitioner forfeited issues not
raised in the opening brief). Thus, Petitioner’s argument rests
on ambiguity, and ambiguity is insufficient. “[J]ust as
evidentiary gaps work against the government in criminal
cases, they work against” Petitioner in an immigration case
like this one. Pereida, 141 S. Ct. at 766.
Second, it is clear from documents outside the scope of
Shepard v. United States, 544 U.S. 13, 20–23 (2005),1 that the
conspiracy offense of which Petitioner was convicted
involved heroin, a federally controlled substance, 21 U.S.C.
§ 841(b)(1)(A)(i), (b)(1)(B)(i). The overt-acts allegations in
Count 1 of the complaint, to which Petitioner pleaded guilty,
refer only to heroin. Similarly, Count 2 refers only to heroin.
Pre-trial materials and the probation officer’s report state that
1 When a criminal sentencing enhancement is contingent on the nature
of a defendant’s prior conviction, the Supreme Court “has circumscribed
the proof a judge may consult out of concern for the defendant’s Sixth
Amendment right to a trial by jury.” Pereida, 141 S. Ct. at 767. But
because “Sixth Amendment concerns are not present in the immigration
context,” Pereida permits courts to consider a broader class of materials,
including any document listed in 8 U.S.C. §1229a(c)(3)(B). Id.

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MARINELARENA V. GARLAND 9
the offense involved heroin. No non-disqualifying drug is
mentioned in any relevant document.
Third, Petitioner declined the immigration judge’s
requests to provide additional documents related to her
conviction, although she had ample time and opportunity to
do so, and our task is to review the record that was made. See
Lising v. INS, 124 F.3d 996, 998 (9th Cir. 1997) (holding that
we generally will not consider “evidentiary material that
either party could have presented to the BIA but that the
petitioner simply failed to introduce at the hearing”).
Petitioner also argues that she should have an opportunity to
testify before an immigration judge concerning the type of
drug involved in the conspiracy to which she pleaded guilty,
even if her testimony differs from the information contained
in the documents of record. But she had that opportunity.
She could have sought to testify, for example, that the records
were mistaken or legally flawed. If her testimony was
disallowed, she could have made an offer of proof. She also
could have argued to this court—before the three-judge panel
or the en banc court—that she should be allowed to provide
documents beyond Shepard’s scope to show that her offense
did not, in fact, involve a federally controlled substance. She
pursued none of those options. She made no offer of proof,
no effort to testify, and no argument that she should be
allowed to offer other forms of proof. Thus, our usual rule
that we give the agency the first chance to apply a new
evidentiary standard on remand, Kawashima v. Holder,
615 F.3d 1043, 1056–57 (9th Cir. 2010), aff’d, 565 U.S. 478
(2012), does not apply.

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MARINELARENA V. GARLAND 10
C. Expungement
No developments in the precedents of this court or of the
Supreme Court, since we issued our previous opinion in
2017, undermine our conclusion that a state conviction
expunged under California Penal Code section 1203.4
remains a “conviction” for federal immigration purposes.
Marinelarena I, 869 F.3d at 792 n.8. Indeed, Petitioner
concedes that “this argument is foreclosed on its merits.”
See, e.g., Lopez v. Sessions, 901 F.3d 1071, 1075–76 (9th Cir.
2018) (holding that a person generally continues to stand
convicted of an offense despite such a later expungement).
We agree.
Petition DENIED.
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
I concur in the majority’s holdings on divisibility and
expungement. I disagree, however, with the majority’s
decision to deny Marinelarena’s request that this case be
remanded to the Board of Immigration Appeals (“BIA”). In
Pereida v. Wilkinson, 141 S. Ct. 754 (2021), the Supreme
Court rejected Ninth Circuit and BIA precedent and held for
the first time that an applicant for cancellation of removal
may rely on a broad range of testimonial and documentary
evidence to show that she was not convicted of a
disqualifying offense. I would grant Marinelarena an
opportunity to show, under this new evidentiary standard, that
her California conspiracy conviction does not constitute a

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MARINELARENA V. GARLAND 11
controlled substance offense. I therefore respectfully dissent
from Part B of the majority opinion.
I. Background
California Penal Code § 182 makes it a crime “[i]f two or
more persons conspire . . . [t]o commit any crime.” Cal.
Penal Code § 182(a)(1). California Health and Safety Code
§ 11352 makes it a crime to transport, import, sell, furnish,
administer, give away, or offer to transport, import, sell,
furnish, administer, or give away, or attempt to import or
transport, “any controlled substance” specified elsewhere in
the Health and Safety Code. Cal. Health & Safety Code
§ 11352(a).
Marinelarena was charged in a two-count criminal
complaint. Count 1 charged a conspiracy to violate § 11352:
On or between October 1, 2006 and October
7, 2006, in the County of Los Angeles, the
crime of CONSPIRACY TO COMMIT A
CRIME, in violation of PENAL CODE
SECTION 182(a)(1), a felony, was committed
by . . . ARACELY MARINELARENA . . . ,
who did unlawfully conspire together and
with another person or persons whose identity
is unknown to commit the crime of SELL
AND TRANSPORT, in violation of Section
11352 of the HEALTH AND SAFETY Code,
a felony; that pursuant to and for the purpose
of carrying out the objectives and purposes of
the aforesaid conspiracy, the said defendants
committed the following overt act or acts at

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MARINELARENA V. GARLAND 12
and in the County of LOS ANGELES: SEE
ATTACHED.
Count 1 then alleged sixteen overt acts, only one of which
mentioned a drug type—heroin.1
Count 2 charged a substantive violation of § 11352:
On or about October 7, 2006, in the County
o f Los A n g e l e s , t he c r i me o f
SALE/TRANSPORTATION/OFFER TO
SELL CONTROLLED SUBSTANCE, in
violation of HEALTH & SAFETY CODE
SECTION 11352(a), a Felony, was committed
by . . . ARACELY MARINELARENA, . . .
who did unlawfully transport, import into the
State of California, sell, furnish, administer,
and give away, and offer to transport, import
into the State of California, sell, furnish,
administer, and give away, and attempt to
import into the Slate of California and
transport a controlled substance, to wit,
HEROIN.
1 The mention of heroin in one alleged overt act does not show that
Marinelarena was convicted of conspiring to sell or transport heroin.
Marinelarena’s conviction could have rested on any one of the sixteen
alleged overt acts. See Marinelarena v. Barr, 930 F.3d 1039, 1046 (9th
Cir. 2019) (en banc) (“Because Marinelarena’s guilty plea could have
rested on an overt act that did not relate to heroin, we cannot assume her
conviction was predicated on an act involving a federal controlled
substance.”), cert. granted, judgment vacated sub nom. Wilkinson v.
Marinelarena, 141 S. Ct. 1512 (2021).

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MARINELARENA V. GARLAND 13
The two charges are distinguishable in one significant
respect: whereas Count 2 charged a specific drug type as an
element of the charged crime, Count 1 did not.
Marinelarena was convicted of Count 1 following her
guilty plea. Neither the plea colloquy nor the judgment of
conviction is in the record. Accordingly, the record does not
reveal whether Marinelarena was convicted as charged in the
criminal complaint or, if not, what crime or elements she was
actually convicted of.
Marinelarena applied for cancellation of removal. To
establish her eligibility for this form of relief, Marinelarena
was required to prove that she had not been convicted of a
controlled substance offense. See 8 U.S.C. § 1229b(b)(1)(C)
(“The Attorney General may cancel removal of, and adjust to
the status of an alien lawfully admitted for permanent
residence, 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 . . . .”). Section 1182(a)(2)(A)(i)(II) makes
inadmissible a noncitizen “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).”
8 U.S.C. § 1182(a)(2)(A)(i)(II).
The BIA concluded that Marinelarena was ineligible for
cancellation of removal because she “has not submitted any
evidence establishing that her conspiracy conviction was not
for a disqualifying controlled substance offense.”
Marinelarena petitioned for review.

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MARINELARENA V. GARLAND 14
II. Discussion
Under the modified categorical approach, Marinelarena
bears the burden of showing that she was not convicted of a
controlled substance offense. Pereida, 141 S. Ct. at 758, 760;
8 U.S.C. § 1229a(c)(4)(A). All agree that Marinelarena has
not yet made that showing. The remaining question is
whether this matter should be remanded to the BIA, as
Marinelarena requests, to afford her an opportunity to do so
under Pereida’s new standard. The majority concludes that
a remand is unwarranted. For the reasons set forth below, I
disagree.
Before Pereida, an applicant for cancellation of removal
seeking to prove that she was not convicted of a disqualifying
offense was narrowly limited as to the evidence that could be
offered on this issue to the so-called Shepard documents. See
Young v. Holder, 697 F.3d 976, 983 (9th Cir. 2012) (en banc)
(“[W]e may review only the charging instrument, transcript
of the plea colloquy, plea agreement, and comparable judicial
record of this information.” (citing Shepard v. United States,
544 U.S. 13, 26 (2005))); Matter of Milian-Dubon, 25 I. & N.
Dec. 197, 197 (BIA 2010) (“In applying the modified
categorical approach to assess an alien’s conviction, the
Immigration Judge and the Board may look beyond the
language of the statute of conviction to a specific set of
judicially noticeable documents that are part of the record of
conviction, including the charging document, the judgment of
conviction, jury instructions, a signed guilty plea, the
transcript from the plea proceedings, and any explicit factual
findings by the trial judge to which the alien assented in the
criminal proceedings.”); In Re Carachuri-Rosendo, 24 I. & N.
Dec. 382, 411 (BIA 2007) (“Under the categorical (and
modified categorical) approach . . . , it is well settled that in

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MARINELARENA V. GARLAND 15
order to determine whether a conviction constitutes an
aggravated felony under section 101(a)(43), only the record
of conviction may be consulted.”), disagreed with on other
grounds by United States v. Pacheco-Diaz, 513 F.3d 776, 778
(7th Cir. 2008). The administrative proceedings in this case
occurred between 2007 and 2014. Throughout that entire
period, Marinelarena was constrained by Ninth Circuit and
BIA precedent which limited the proof that she could adduce
to the Shepard documents.
Pereida abrogated this precedent and held that a broad
range of evidence may be presented. Pereida, 141 S. Ct.
at 767. Under Pereida, an applicant for cancellation of
removal may rely not only on the Shepard documents but also
on other documentary evidence, see id. (citing 8 U.S.C.
§ 1229a(c)(3)(B)), and testimonial evidence, see id. at 764
(“[It is] impossible to discern an individual’s offense of
conviction without consulting at least some documentary or
testimonial evidence.”). Permissible testimonial evidence
appears to include a noncitizen’s own testimony. See id.
at 767 (cross-referencing footnote 5 of the Court’s opinion);
id. at 764 n.5 (“The INA authorizes an immigration judge to
make ‘credibility determination[s]’ based on an alien’s proof,
§ 1229a(c)(4)(C); it says the immigration judge must
determine whether ‘testimony is credible, is persuasive, and
refers to specific facts sufficient to [discharge] the applicant’s
burden of proof,’ § 1229a(c)(4)(B) . . . . In all of these
additional ways, the INA again anticipates the need for proof
and the possibility of its challenge in an application for
relief—and nowhere does the statute suggest some special
carveout exists when it comes to evidence concerning prior
convictions.” (some alterations in original)); see also id.
at 775 (Breyer, J., dissenting) (criticizing the majority for
“allowing parties to introduce a wide range of documentary

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MARINELARENA V. GARLAND 16
evidence and testimony to establish the crime of conviction”);
id. at 776 (noting that noncitizens may rely on “their own
testimony”).2 Because we are now under a new regime
established by Pereida, fairness requires that Marinelarena
should have an opportunity to show, under this new
evidentiary rule, that her conspiracy conviction does not
qualify as a controlled substance offense. I would therefore
remand this matter to the BIA.
The majority concludes that a remand is unwarranted
because (1) Marinelarena “declined the immigration judge’s
requests to provide additional documents related to her
conviction, although she had ample time and opportunity to
do so,” Maj. Op. at 9, and (2) “has never argued that her
conviction involved a non-disqualifying controlled
substance,” Maj. Op. at 8. I disagree. Throughout the
pendency of her administrative proceedings, Marinelarena
plainly was constrained by Circuit and BIA case law limiting
the kinds of evidence she could offer. She cannot be faulted
for failing to present evidence that Ninth Circuit and BIA
precedent squarely barred her from presenting. See Szonyi v.
Whitaker, 915 F.3d 1228, 1233 (9th Cir. 2019) (as amended)
(“Where the agency’s position ‘appears already set’ and
recourse to administrative remedies is ‘very likely’ futile,
exhaustion is not required.” (quoting El Rescate Legal Servs.,
Inc. v. Exec. Office of Immig. Rev., 959 F.2d 742, 747 (9th
2 If there is uncertainty as to the types of evidence allowed, this too
favors a remand. See Kawashima v. Holder, 615 F.3d 1043, 1056 (9th
Cir. 2010) (“[T]he government argues that we should remand this case to
the BIA so that the agency may determine, in the first instance, what
additional types of evidence it may consider under this newly announced
standard and so that the government may have the opportunity to
introduce evidence to meet this standard. We agree.”), aff’d, 565 U.S. 478
(2012).

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MARINELARENA V. GARLAND 17
Cir. 1991))); cf. Harris v. Carter, 515 F.3d 1051, 1054 (9th
Cir. 2008) (granting equitable tolling where the petitioner
relied to his detriment on Ninth Circuit precedent later
overturned by the Supreme Court). Nor can she be faulted for
failing to present arguments that would have relied on such
evidence.3
The majority alternatively concludes that remand is
unwarranted because “it is clear from documents outside the
scope of Shepard v. United States, 544 U.S. 13, 20–23
(2005), that the conspiracy offense of which Petitioner was
convicted involved heroin, a federally controlled substance.”
Maj. Op. at 8. The question here, however, is not whether
Marinelarena’s offense “involved heroin.” Rather, the
question is whether Marinelarena was convicted of an offense
of which heroin was an element. See Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (“To determine whether a prior
conviction is for generic burglary (or other listed crime)
courts apply what is known as the categorical approach:
They focus solely on whether the elements of the crime of
conviction sufficiently match the elements of generic
burglary, while ignoring the particular facts of the case.”).
Here, Count 1 of the criminal complaint (as opposed to Count
2) does not treat drug type as an element. If Marinelarena
was convicted “as charged” in the complaint, then I do not
see how she was convicted of a disqualifying controlled
substance offense. If Marinelarena pled guilty only to the
3 The Majority derides Marinelarena for not having sought “to provide
documents beyond Shepard’s scope,” and not “argu[ing] that she should
be allowed to offer other forms of proof.” Maj. Op. at 9. But we have
held in similar circumstances that a party need not engage in such acts
where “a solid wall of Circuit authority would have rendered [such acts]
futile.” Costa v. Desert Palace, Inc., 299 F.3d 838, 864 (9th Cir. 2002)
(en banc.).

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MARINELARENA V. GARLAND 18
elements set out in the complaint, then she did not plead
guilty to conspiring to sell or transport heroin; she pled guilty
only to conspiring to sell or transport a controlled substance.
And if that is the case, then she did not plead guilty to—and
was not convicted of—a disqualifying controlled substance
offense. Even if, as a matter of California law, Marinelarena
should have been convicted of a specific drug-type element,4
what matters is whether she was in fact convicted of a drug-
type element. See Descamps, 570 U.S. at 257 (under the
modified categorical approach, we “compare the elements of
the crime of conviction (including the alternative element
used in the case) with the elements of the generic crime”
(emphasis added)).5
I recognize that we have held that “[c]harging papers
alone are never sufficient” to establish the elements of the
crime of conviction. United States v. Corona-Sanchez,
291 F.3d 1201, 1211 (9th Cir. 2002) (en banc). Assuming
that case law applies in this context, Marinelarena cannot rely
on the criminal complaint alone to show that she was not
convicted of conspiracy to sell or transport heroin. But she
can present evidence under Pereida to show that she was
convicted “as charged.” Such evidence, in combination with
the criminal complaint, presumably would be sufficient.
4 Marinelarena argues that a § 182(a)(1)/11352 offense is indivisible
as to drug type. While she concedes that a substantive § 11352(a) offense
is divisible as to drug type, see United States v. Martinez-Lopez, 864 F.3d
1034, 1041 (9th Cir. 2017) (en banc), she argues that a conspiracy to
violate § 11352 is not.
5 The majority also notes that California pattern instructions require
that in a conspiracy case, the court is required to “direct the jury to the
elements of the underlying crime.” Maj. Op. 7. But what may be required
in a jury trial is of little relevance in a plea taking colloquy.

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MARINELARENA V. GARLAND 19
What the majority has done is to bind Marinelarena to the
pre-Pereida rules, although nothing in Pereida requires such
a result.6 Rather than speculating that a remand under the
new Pereida standard would be futile, I would afford
Marinelarena an opportunity to prove her case under the new
evidentiary standard announced in Pereida. Marinelarena
should be afforded this opportunity before being removed
from this country and separated from her family.7
6 Without knowing what evidence Marinelarena intends to offer on
remand, the majority speculates that remand would be futile. We are not
a fact-finding agency; that function has been assigned to the immigration
judge.
7 In one respect, this case is unlike Pereida. There, the noncitizen did
not seek “a remand for another chance to . . . introduc[e] evidence about
his crime of conviction; at oral argument, he even disclaimed interest in
the possibility.” Pereida, 141 S. Ct. at 763. Here, by contrast,
Marinelarena ardently seeks a remand to afford her another chance to
prove her eligibility for cancellation of removal.

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