The Ninth Circuit has determined that California's conspiracy statute (penal code section 182(a)(1)) is broader than the generic definition of a controlled substance violation because it criminalizes conspiracy to commit any crime, including ones unrelated to controlled substances.  However, because California law requires jurors to agree unanimously on the object of the conspiracy, the statute is divisible.  As such, the Court proceeded to the modified categorical approach, and determined that the petitioner was convicted of conspiracy to transport a controlled substance (health & safety code section 11352).  This section itself is also divisible, with respect to the identity of the controlled substance.  Because the criminal complaint only identified the controlled substance in the list of overt acts, the Court concluded that it was inconclusive as to whether the petitioner's conviction necessarily rested upon a controlled  substance in the federal drug schedules.  The Court further concluded that the petitioner could not demonstrate her eligibility for relief based on this inconclusive record of conviction, as she bore the burden of proving that she was not convicted of a controlled substance offense.  The Court found that this conclusion was not inconsistent with the Supreme Court's decision in Moncrieffe v. Holder because Moncrieffe addressed the government's burden to prove the deportability of a lawful permanent resident, not a non-citizen's burden to prove eligibility for relief from removal.

This decision now deepens a circuit split with the First Circuit with respect to inconclusive records of conviction.  One judge on the Ninth Circuit panel dissented with respect to the conclusion regarding the burden of proof and an inconclusive record of conviction.  

Given the multiple past cases from the Ninth Circuit on this issue (with different outcomes each time), I expect this will not be the last we hear of inconclusive records from the court.

The full text of Marinelarena v. Sessions can be found here: