Huerta-Guevara v. Ashcroft, 02-70454.

• Citation: 321 F.3d 883
• Decision Date: 04 March 2003
• Docket Number: No. 02-70454.,02-70454.
• Parties: Maria HUERTA-GUEVARA, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

321 F.3d 883

Maria HUERTA-GUEVARA, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.

No. 02-70454.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2003.

Filed March 4, 2003.

Mark N. Bravin and Corinne A. Niosi, Morgan, Lewis & Bockius, LLP, Washington, DC, for the petitioner.

M. Jocelyn Lopez Wright and Cindy S. Ferrier, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals. I & NS No. A90-111-499.

Before TROTT, RYMER, and TALLMAN, Circuit Judges.

OPINION

RYMER, Circuit Judge:

Maria Huerta-Guevara (Huerta) is a native and citizen of Mexico who entered the United States without inspection in 1975 and whose status was adjusted to lawful permanent residency in 1989. On June 8, 1996, Huerta was convicted of possession of a stolen vehicle in violation of Arizona law for which she was eventually sentenced to two years imprisonment. The Immigration & Naturalization Service (INS) initiated removal proceedings based on her conviction for a "theft" offense that is an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). The immigration judge (IJ) held that her conviction qualified as an aggravated felony, and the Board of Immigration Appeals (BIA) affirmed the results of that decision, without opinion, pursuant to its "streamlining" authority under 8 C.F.R. § 3.1(a)(7).¹

Huerta seeks review of her final removal order. She raises two issues on appeal: that the IJ and the BIA erroneously concluded that she was convicted of an aggravated felony; and that she was denied due process by the IJ, who failed to inquire whether she waived her right to counsel and to develop the record adequately, as well as by the BIA, which failed to follow its own regulation in deciding to streamline her case.²

Although we have no jurisdiction to review a final order of removal against an alien who is removable by reason of having committed an aggravated felony, INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), we do have jurisdiction to determine our jurisdiction by deciding whether Huerta is removable on account of her criminal conviction. See, e.g., Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000); Aragon-Ayon v. INS, 206 F.3d 847, 850-51 (9th Cir.2000). We conclude that she is not. While this means that the jurisdictional bar to review of removal orders is not implicated, there is no other basis upon which the INS sought to remove Huerta. Accordingly, as her order of removal must be vacated, there is no need for us to reach her claims of constitutional error.

The INS charged that Huerta was removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because she had been convicted, after her admission into the United States, of "an aggravated felony as defined in section 101(a)(43)(G) of the INA, a law relating to a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least 1 year was imposed." The Notice to Appear alleged that Huerta had been convicted on February 11, 1997 in the Superior Court of Arizona for the offense of "AMENDED: POSSESSION OF A STOLEN VEHICLE" in violation of A.R.S. § 13-1802. Huerta's removal hearing was continued several times to allow an opportunity to find counsel. Eventually, her plea was taken with Huerta appearing pro se. She stated in response to the IJ's inquiry that she understood the charge and was not denying it, but that she disputed the alleged date of her conviction. The government introduced the judgment from the Superior Court of Arizona for Maricopa County revoking Huerta's probation, which indicates that the underlying offense committed on June 8, 1996 was "possession of a stolen vehicle," a class 4 felony, in violation of A.R.S. § 13-1802. After considering the evidence, the immigration judge sustained the charge "as it fits squarely to the language of the aggravated felony statute." The IJ also determined that Huerta was ineligible for relief under INA § 212(c), 8 U.S.C. § 1182 (1994), because she committed her removable offense after the waiver had been eliminated for aggravated felons. The BIA affirmed the results of this decision.

Huerta argues that the statute under which she was convicted does not, on its face, fall within the generic definition of "theft offense" that we adopted in U.S. v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc). The government responds that Huerta waived her ability to challenge deportability before the BIA by conceding that she was removable and that, in any event, possession of a stolen vehicle, for which she was convicted, is "receipt of stolen property."

We do not agree that Huerta's concession is dispositive. As the government recognizes, we may consider an issue regardless of waiver if the issue is purely one of law and the opposing party will suffer no prejudice or if new issues have become relevant while the appeal was pending because of a change in the law. United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001) (identifying these as two of four exceptions to the general rule of waiver). Whether an offense constitutes an aggravated felony is purely a legal question, Leyva-Licea v. INS, 187 F.3d 1147, 1150(9th Cir.1999), but the government asserts prejudice in that the INS had no reason to believe it was necessary to provide further documentation. This lacks force given that 8 U.S.C. § 1229a(c)(3)(A) imposed on the INS the burden of proving that Huerta was removable by clear and convincing evidence, and the INS did not rest on Huerta's concession but rather introduced some evidence in support of its position that her Arizona conviction was a "theft offense." No reason appears why it could not have introduced sufficient evidence. Regardless, there has been a change, or at least a significant clarification, of the law since the IJ's decision was rendered and the BIA affirmed the result. While those proceedings were pending, the panel opinion in Corona-Sanchez, 234 F.3d 449(9th Cir.2000), was the law of the circuit. It defined "theft offense" more broadly than the en banc decision, 291 F.3d 1201, which was filed after the BIA's summary affirmance.

En banc we held that "theft offense" in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) means "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Corona-Sanchez, 291 F.3d at 1205 (adopting the Seventh Circuit's definition in Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001)). We also clarified the analytical framework that must be followed. Applying this framework, we first make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed by A.R.S. § 13-1802 is broader than, and so does not categorically fall within, this generic definition. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). For this purpose we "`look only to the fact of conviction and the statutory definition of the prior offense.'" Corona-Sanchez, 291 F.3d at 1203(quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Here, A.R.S. § 13-1802 is a divisible statute, four subparts of which do not require intent.³ No subsection specifically criminalizes possession of a stolen vehicle. In addition, the statute prohibits, among other things, theft of services and the aiding and abetting of theft of services. Ariz.Rev.Stat. § 13-1802(A)(2), (3), and (6). As services are not property, see Corona-Sanchez, 291 F.3d at 1208, and as intent is required to satisfy the generic definition, the conduct proscribed by § 13-1802 extends beyond the term "theft offense." Accordingly, a conviction under A.R.S. § 13-1802 does not facially qualify as a theft offense that is an aggravated felony under the INA.

The government argues that INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), specifically includes the offense "receipt of stolen property," and that the crime involved in Hernandez-Mancilla, from which Corona-Sanchez borrowed the definition of "theft offense," was possession of a stolen vehicle. However, unlike Hernandez-Mancilla, where the BIA relied on language in the record of conviction noting that Hernandez-Mancilla had pled guilty to an indictment charging him with entering a motor vehicle "with the intent to commit the offense of theft therein," Hernandez-Mancilla, 246 F.3d at 1004, we cannot tell from the mere fact of Huerta's conviction for possession of a stolen vehicle that she knew the vehicle was stolen or that the vehicle was taken or control was exercised with the requisite criminal intent.

If the statute criminalizes conduct that would not constitute an aggravated felony under the generic definition, then we consider whether documentation or other judicially noticeable facts in the record indicate that Huerta was convicted of the elements of the generically defined crime. Chang, 307 F.3d at 1189 (citing Corona-Sanchez, 291 F.3d at 1211); Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000). The judgment is the only document that was in the record before the immigration judge, and it indicates only that Huerta was convicted of "possession of a stolen vehicle" in violation of A.R.S. § 13-1802. Notwithstanding this, the government argues that Huerta's conviction for "possession of a stolen vehicle" narrows the possible subsections of § 13-1802 to (1) — control of another's property with intent to deprive — or (5) —...