Carrillo-Jaime v. Holder

• Citation: 572 F.3d 747
• Decision Date: 15 July 2009
• Docket Number: No. 06-74581.,06-74581.
• Parties: Reinaldo Otoniel CARRILLO-JAIME, aka Reinaldo Carrillo, Reinaldo Otoniel Carrillo, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

572 F.3d 747

Reinaldo Otoniel CARRILLO-JAIME, aka Reinaldo Carrillo, Reinaldo Otoniel Carrillo, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06-74581.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2009.

Filed July 15, 2009.

Kari Elisabeth Hong, Portland, OR, for the petitioner.

James Arthur Hunolt, Gladys Marta Steffens Guzman, Mona Maria Yousif, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A042-483-280.

Before: D.W. NELSON, W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges.

Concurrence by Judge TALLMAN.

WILLIAM A. FLETCHER, Circuit Judge:

Petitioner Reinaldo Otoniel Carrillo-Jaime, a citizen of El Salvador and lawful permanent resident of the United States, pled guilty in 2005 to violating Section 10801 of the California Vehicle Code, which prohibits owning or operating a "chop shop." The government thereafter initiated removal proceedings. The Immigration Judge ("IJ") held that Carrillo-Jaime's conviction under § 10801 categorically qualified as an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G) and ordered him removed. The Board of Immigration Appeals ("BIA") affirmed.

We hold under the categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), that a conviction under Cal. Veh.Code § 10801 is not an aggravated felony theft offense under § 1101(a)(43)(G). We further hold that the record is not sufficient to establish that Carrillo-Jaime's § 10801 conviction is an aggravated felony theft offense under the modified categorical approach. We grant the petition for review and remand to the BIA for further proceedings.

I. Background

Carrillo-Jaime, a citizen of El Salvador, was admitted to the United States as a lawful permanent resident in June 1991. In August 1993, he pled guilty to receiving stolen property in violation of Cal. Pen. Code § 496(a) and was sentenced to one year in prison. Eleven-and-a-half years later, in March 2005, he pled guilty to operating a chop shop in violation of Cal. Veh.Code § 10801 and was sentenced to two years in prison.

In September 2005, the government charged Carrillo-Jaime with removability under 8 U.S.C. § 1227(a)(2)(A)(i) for being convicted of a crime involving moral turpitude committed within five years after admission, and under 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of two crimes involving moral turpitude any time after admission. The IJ ordered him removed.

On appeal, the BIA held that Carrillo-Jaime was eligible for waiver of his 1993 conviction under Immigration and Naturalization Act Section 212(c), 8 U.S.C. § 1182(c) (repealed 1996). If that conviction were waived, he would no longer be removable because only his 2005 conviction would remain. That crime was committed more than five years after Carrillo-Jaime's admission. The BIA remanded to the IJ for further proceedings.

On remand, the government brought a new charge against Carrillo-Jaime based on his 2005 conviction under Cal. Veh.Code § 10801. The government charged that this conviction rendered him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because it was a conviction for an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G).

The IJ held that Carrillo-Jaime's 2005 violation of Cal. Veh.Code § 10801 qualified categorically as a theft offense under 8 U.S.C. § 1101(a)(43)(G) and ordered him removed. The IJ did not rule on Carrillo-Jaime's request for a Section 212(c) waiver of his 1993 conviction. The BIA affirmed, and Carrillo-Jaime petitioned for review in this court.

II. Standard of Review

We review de novo whether an offense constitutes an aggravated felony for which an alien is removable. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004).

III. Discussion

A. Categorical Approach

We first analyze Carrillo-Jaime's conviction under Cal. Veh.Code § 10801 under the categorical approach of Taylor to determine whether it is a theft offense under § 1101(a)(43)(G).

"Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). A "theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year" constitutes an aggravated felony. Id. § 1101(a)(43)(G). We have defined "theft offense" under § 1101(a)(43)(G) as "[1] a taking of property or an exercise of control over property [2] without consent[3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc) (quoting Hernandez-Mancilla v. INS, 246 F.3d 1002, 1004 (7th Cir.2001) (bracketed numbers added)), superceded on other grounds by U.S.S.G. § 2L1.2 cmt. n. 4 (2002). If a violation of § 10801 satisfies these three elements, it constitutes a theft offense under § 1101(a)(43)(G).

Cal. Veh.Code § 10801 provides:

Any person who knowingly and intentionally owns or operates a chop shop is guilty of a public offense and, upon conviction, shall be punished by imprisonment in the state prison for two, three, or four years, or by a fine of not more than fifty thousand dollars ($50,000), or by both the fine and imprisonment, or by up to one year in the county jail, or by a fine of not more than one thousand dollars ($1,000), or by both the fine and imprisonment.

Cal. Veh.Code § 250 defines "chop shop" as

any building, lot, or other premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud....

A violation of § 10801 clearly satisfies the first and third elements of "theft offense" under § 1101(a)(43)(G).

The first element is "exercise of control over property." That element is satisfied because owning a chop shop where motor vehicles are "alter[ed], destroy[ed], disassembl[ed], dismantl[ed], reassembl[ed], or stor[ed]" necessarily implies possession of those vehicles, which, in turn, necessarily implies exercising control over them. "[P]ossession is of course equivalent to an exercise of control." Randhawa v. Ashcroft, 298 F.3d 1148, 1153 (9th Cir.2002). Similarly, operating a chop shop necessarily implies "active involvement" in the activities listed above and, therefore, exercising control over the vehicles. People v. Ramirez, 79 Cal.App.4th 408, 94 Cal. Rptr.2d 76, 80 (2000).

The third element is having the "criminal intent to deprive the owner of rights and benefits of ownership." Section 10801 criminalizes "knowingly and intentionally" owning or operating a premises where property "known to be illegally obtained" is altered so that it will be misidentified, become unidentifiable, or be sold or otherwise disposed. A conviction under § 10801 requires criminal intent. See People v. Rodriguez, 2004 WL 2486649 at *8 (Cal.Ct.App. Nov.4, 2004) ("The `own or operate' element [of § 10801] is construed broadly to include any person who actively participates in the conduct of altering or disassembling vehicles with the requisite criminal intent." (citing Ramirez, 94 Cal. Rptr.2d at 79-80) (emphasis added)).

The second element of "theft offense" under § 1101(a)(43)(G) is taking or exercising control over property "without consent." For the reasons that follow, we conclude that this element is not necessarily satisfied by a conviction under § 10801.

Under Cal. Veh.Code § 250, the motor vehicle or motor vehicle part must be obtained "by theft, fraud, or conspiracy to defraud." If, under California law, one can obtain property through theft, fraud, or conspiracy to defraud, and do so with the valid consent of the owner, then a violation of § 10801 does not satisfy the second element of a § 1101(a)(43)(G) theft offense. We consider these possibilities in turn.

1. Obtaining Property by Theft

Section 250 of the California Vehicle Code, defining a "chop shop," proscribes altering, destroying, etc. "any motor vehicle or motor vehicle part known to be illegally obtained by theft." Neither § 10801 nor § 250 defines "theft," so we take the definition from California's general theft statute, which provides in relevant part:

Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.

Cal.Penal Code § 484(a).

In Corona-Sanchez, we held that a violation of § 484(a) does not categorically constitute a theft offense under § 1101(a)(43)(G). We so held because § 484(a) sweeps more broadly than generic theft under § 1101(a)(43)(G). Among other things, § 484(a) criminalizes aiding and abetting, which includes promotion and instigation of theft. Further, § 484(a) criminalizes theft of labor and false credit reporting, neither of which is a theft of property. 291 F.3d at 1208. But Corona-Sanchez does not resolve our case. Even though § 10801 looks to § 484(a) for its definition of theft, it is much narrower than § 484(a). Section 10801 has no aiding and abetting provision. Moreover, the theft under § 10801 is limited to theft of property, indeed to a subcategory of property—"any motor vehicle or motor vehicle part."

Theft of property under Cal.Penal Code § 484(a) includes "larceny, embezzlement, larceny...