The Ninth Circuit, sitting en banc,, has determined that an inconclusive record of conviction meets a petitioner’s burden for demonstrating eligibility for relief. The court determined that this outcome is mandated by the Supreme Court’s decision in Moncrieffe v. Holder.
The court left open the question as to who bears the burden of production of all documents in the record of conviction. “To the extent that there may be a predicate factual question, it would be whether all relevant and available documents have been produced. But this question implicates a possible burden of production, which we need not and do not address here, not the burden of proof. Once all relevant and available Shepard documents have been produced, nothing remains inconclusive—the documents either show that the petitioner was convicted of a disqualifying offense under the categorical approach, or they do not. What the documents show is thus a purely legal question, to which the burden of proof is irrelevant.” The court remanded the case to the Board of Immigration Appeals to decide the burden of production issue in the first instance.
The full text of Marinelarena v. Sessions can be found here: