Martinez-Perez v. Gonzales

• Decision Date: 02 August 2005
• Docket Number: No. 03-70531.,03-70531.
• Citation: 417 F.3d 1022
• Parties: Sergio MARTINEZ-PEREZ, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

417 F.3d 1022

Sergio MARTINEZ-PEREZ, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-70531.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2004.

Filed December 29, 2004.

Opinion Withdrawn and Amended Opinion Filed August 2, 2005.

COPYRIGHT MATERIAL OMITTED

Frank E. Ronzio, Los Angeles, CA, for the petitioner.

David E. Dauenheimer, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A36-908-119.

Before TASHIMA, FISHER, and TALLMAN, Circuit Judges.

AMENDED OPINION ORDER

The opinion filed on December 29, 2004, and reported at 393 F.3d 1018, is withdrawn and the amended opinion filed concurrently with this order is substituted in its place. The time for filing petitions for rehearing shall run anew commencing on the filed date of the amended opinion, in accordance with Fed. R.App. P. 40(a)(1) and 35(c).

TASHIMA, Circuit Judge.

Sergio Martinez-Perez ("Martinez") petitions for review of the Board of Immigration Appeal's ("BIA") order affirming the Immigration Judge's ("IJ") decision that he is removable and ineligible for any form of relief because of his conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). For the reasons stated below, we conclude, first, that § 487(c) of the California Penal Code, which sets forth the offense of grand theft, criminalizes conduct that falls outside the generic definition of theft, as established in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002) (en banc); therefore, that § 487(c) is not a theft offense under the categorical approach set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Second, based on our review of the criminal information and abstract of judgment of Martinez's prior conviction, we also conclude that the conviction does not qualify as a generic theft offense under the modified categorical approach approved by Taylor.

Although, under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a final order of removal against an alien who is removable based on his conviction for an aggravated felony, we retain jurisdiction to determine whether Martinez's offense qualifies as an aggravated felony. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885 (9th Cir.2003); Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir.2002) (observing that the court retains jurisdiction to determine whether the jurisdictional bar of 8 U.S.C. § 1252(a)(2) applies). We conclude that the BIA erred in determining that Martinez's prior conviction qualifies as an aggravated felony and therefore grant the petition for review.

Background

Martinez is a native and citizen of Mexico, and was admitted to the United States in 1981 as an immigrant. In 1996, Martinez was charged in state court with second degree robbery, in violation of § 211 of the California Penal Code. The information alleged that Martinez "willfully, unlawfully, and by means of force and fear [took] personal property from the person, possession, and immediate presence of Teresa Guttierrez." Martinez pled guilty to one count of grand theft based on taking property from another, in violation of § 487(c) of the California Penal Code, and was sentenced to two years confinement.

In 2001, the Immigration and Naturalization Service ("INS")¹ served Martinez with a Notice to Appear, charging that Martinez was subject to removal under 8 U.S.C. § 1227(a)(2) (A)(iii), based on his conviction for grand theft, which the INS alleged constituted an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G). The IJ concluded at Martinez's removal hearing that his conviction was a theft offense for which a sentence of one year or more had been imposed and therefore constituted an aggravated felony under § 1101(a)(43). The IJ further found that Martinez was ineligible for any relief from removal and ordered Martinez removed.

Martinez then appealed to the BIA, arguing that a grand theft conviction under § 487(c) of the California Penal Code does not constitute an aggravated felony. The BIA affirmed the IJ's decision without opinion, pursuant to the streamlining procedures formerly set forth at 8 C.F.R. § 3.1(e)(4).² Martinez timely filed a petition for review.

Standard of Review

When the BIA affirms the IJ's decision without opinion, we review the IJ's decision "as though it were the Board's." Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1096 (9th Cir.2004) (quoting Wang v. INS, 352 F.3d 1250, 1253 (9th Cir.2003)). Whether an offense is an aggravated felony under 8 U.S.C. § 1101(a) is a legal question reviewed de novo. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004).

Analysis

Under 8 U.S.C. § 1101(a)(43)(G), the term "aggravated felony" includes a "theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year[.]" Id. To determine whether an offense qualifies as an aggravated felony, we compare the elements of the statute under which the person was convicted to the definition of aggravated felony in § 1101(a)(43). Randhawa, 298 F.3d at 1152. We first conduct a categorical comparison of the statute and the generic definition. Huerta-Guevara, 321 F.3d at 886-87. If there is no categorical match, we then apply a modified categorical approach to determine whether the defendant actually was convicted of each the elements of the generically defined crime. Id. at 887; Randhawa, 298 F.3d at 1152.

I. Categorical Approach

Under the categorical approach, an offense is an aggravated felony "if and only if the `full range of conduct' covered by [the criminal statute] falls within the meaning of that term." Randhawa, 298 F.3d at 1152 (quoting United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999)); Taylor, 495 U.S. at 602, 110 S.Ct. 2143. We look only to the fact of conviction and the statutory definition of the offense in determining whether the conduct proscribed by the statute is categorically broader than the generic definition. Huerta-Guevara, 321 F.3d at 887 (citing Corona-Sanchez, 291 F.3d at 1203). The generic definition of "theft offense" as it is used in § 1101(a)(43)(G) is "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.

In Corona-Sanchez, we applied the categorical approach to compare the definition of theft under § 484(a) of the California Penal Code to the generic definition of "theft offense" as used in § 1101(a)(43)(G). See id. at 1207-08. We observed that § 484(a) "allows a conviction for theft when the defendant has neither taken, nor exercised control over, the property." Id. at 1207-08 (noting that a defendant can be convicted of the substantive offense of violating § 484(a) for aiding and abetting a theft, for theft of labor, and for solicitation of false credit reporting). We concluded that a conviction for theft under § 484(a) does not qualify as an aggravated felony under § 1101(a)(43)(G) for federal sentencing purposes under the categorical approach. Id. at 1208.

Here, Martinez was convicted of grand theft under § 487(c) of the California Penal Code. Section 487 is entitled "Grand theft defined" and states that "[g]rand theft is theft committed in any of" the situations enumerated in the statute. Cal.Penal Code § 487 (West 2003). Section 487(c) provides that grand theft is theft committed "[w]hen the property is taken from the person of another." Cal.Penal Code § 487(c) (West 2003). Thus, § 487 defines grand theft by reference to § 484(a), the general theft statute, the violation of which we held is not categorically a theft offense under § 1101(a)(43)(G). See Corona-Sanchez, 291 F.3d at 1208.

But even though § 487(c) defines grand theft by reference to "theft" as defined in § 484(a), the full range of conduct proscribed by § 487(c) may nevertheless fall within the generic definition of theft offense. We therefore must compare the relevant elements of the generic definition of theft offense—namely (1) the intent to deprive the owner of rights and benefits of ownership, and (2) the taking of property —with the conduct proscribed by § 487(c).

A. Intent to Deprive Owner of Rights and Benefits of Ownership

California case law has interpreted § 487 as "[n]ecessarily requir[ing] a finding that the accused intended to steal." People v. Jaramillo, 16 Cal.3d 752, 129 Cal.Rptr. 306, 548 P.2d 706, 709 (1976) (en banc); see People v. Davis, 19 Cal.4th 301, 79 Cal.Rptr.2d 295, 965 P.2d 1165, 1167-68 (1998) ("The intent to steal ... is the intent, without a good faith claim of right, to permanently deprive the owner of possession."); People v. Campbell, 63 Cal App.3d 599, 133 Cal.Rptr. 815, 824 (1976); cf. United States v. Perez-Corona, 295 F.3d 996, 1001 (9th Cir.2002) (concluding that, because case law interpreting the state criminal statute required only knowledge, the conduct proscribed by the statute fell outside the definition of theft offense, which requires intent to deprive the owner of property). Further, the California Supreme Court has interpreted § 484(a)—the general theft statute to which § 487 refers in defining grand theft—as itself requiring the intent to permanently deprive the owner of possession. See Davis, 79 Cal.Rptr.2d 295, 965 P.2d at 1167-68 (stating the general rule that intent to steal is required for conviction under § 484). Therefore, just as the generic definition of theft offense requires "intent to deprive the owner of rights and benefits of ownership," Corona-Sanchez, 291 F.3d at 1205, § 487(c) allows for conviction only where the defendant had an intent to deprive the owner of possession. Section 487(c) thus does not fail the categorical test based...