Rendon v. Holder

• Decision Date: 22 August 2014
• Docket Number: No. 10–72239.,10–72239.
• Citation: 764 F.3d 1077
• Parties: Carlos Alberto RENDON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

764 F.3d 1077

Carlos Alberto RENDON, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–72239.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2014.

Filed Aug. 22, 2014.

Brigit G. Alvarez (argued), Law Office of Brigit G. Alvarez, Los Angeles, CA, for Petitioner.

Gary J. Newkirk (argued), Trial Attorney; Tony West, Assistant Attorney General; Francis W. Fraser, Senior Litigation Counsel; and Jacob A. Bashyrov, Trial Attorney, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092–080–719.

Before: STEPHEN REINHARDT, RAYMOND C. FISHER, and MARY H. MURGUIA, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

In this case, we consider whether a statute written in the disjunctive is divisible in light of the Supreme Court's decision in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The statutory text at issue is a different portion of the same statute that the Supreme Court encountered in Descamps—California Penal Code section 459—which states, inter alia, that “[e]very person who enters any ... vehicle ..., when the doors are locked, ... with intent to commit grand or petit larceny or any felony is guilty of burglary.” Here, the Board of Immigration Appeals (BIA) determined that petitioner's conviction under section 459 qualified as an attempted theft offense, an aggravated felony under 8 U.S.C. § 1101(a)(43)(U), by applying the modified categorical approach. This approach is permissible only if section 459 is divisible. We hold that the presence of an “or” between “grand or petit larceny” and “any felony” does not, in itself, render the statute divisible, and that, under Descamps,section 459 is indivisible as a matter of law. Therefore, the BIA's use of the modified categorical approach was impermissible, and we accordingly grant the petition for review.

BACKGROUND

Petitioner Carlos Alberto Rendon, a native and citizen of Mexico, was admitted to the United States in 1989 as a Lawful Permanent Resident (LPR). On July 29, 1999, the Immigration and Naturalization Service (INS) lodged a charge against petitioner based on his 1996 second-degree burglary conviction in California state court under section 459/460(b) of the California Penal Code. The INS contended that this offense qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) because it was “a theft offense ... or burglary offense for which the term of imprisonment [was] at least one year.” On this basis, the INS alleged that petitioner was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated felony.¹

On August 24, 1999, the Immigration Judge (IJ) agreed with the INS that petitioner was removable and denied petitioner's request for adjustment of status and a waiver under 8 U.S.C. § 1182(h) because, according to the IJ, petitioner had been convicted of an aggravated felony, which rendered him ineligible for such a waiver. On appeal, the Board of Immigration Appeals (BIA) remanded to the IJ for consideration of a subsequent BIA opinion interpreting the meaning of “burglary offense” in 8 U.S.C. § 1101(a)(43)(G), as well as conflicting federal court cases concerning the intersection between state burglary convictions and crimes of violence, which are aggravated felonies under 8 U.S.C. § 1101(a)(43)(F).

On remand, petitioner sought cancellation of removal under 8 U.S.C. § 1229b(a). This time, the IJ determined that petitioner's1996 second-degree burglary conviction was an aggravated felony because it qualified under 8 U.S.C. § 1101(a)(43)(U) as an attempted theft offense.² Commission of an aggravated felony renders an alien statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(a)(3). As a result, the IJ concluded that petitioner was statutorily ineligible for cancellation of removal.³ The BIA dismissed petitioner's appeal of the IJ's decision. In support of its decision, the BIA looked to the contents of petitioner's plea to determine that he had been convicted of California Penal Code section 459 for “entering a locked vehicle with the intent to commit larceny, an aggravated felony” (emphasis added). Petitioner filed a timely petition with this Court for review of the BIA's decision that his conviction under California Penal Code section 459 was an aggravated felony that rendered him ineligible for cancellation of removal.

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law, including whether a conviction qualifies as an aggravated felony. Mandujano–Real v. Mukasey, 526 F.3d 585, 588 (9th Cir.2008). We review this legal question de novo. Id.

DISCUSSION

Petitioner was convicted of second-degree burglary under California Penal Code section 459, which states, inter alia, that “[e]very person who enters any ... vehicle ..., when the doors are locked, ... with intent to commit grand or petit larceny or any felony is guilty of burglary.” This conviction qualifies as an aggravated felony if petitioner's violation was an attempted “theft offense ... or burglary offense for which the term of imprisonment [was] at least one year.” 8 U.S.C. § 1101(a)(43)(G); id. § 1101(a)(43)(U). Descamps held that a conviction under section 459 does not qualify as a conviction for generic burglary. 133 S.Ct. at 2293. The BIA determined, however, that petitioner was ineligible for cancellation of removal because his conviction under section 459 was for an attempted theft offense. We disagree. Accordingly, we grant the petition and remand for further proceedings consistent with this opinion.⁴

I

In order to determine whether a state conviction qualifies as an attempted theft offense under the federal aggravated felony statute, 8 U.S.C. § 1101(a)(43)(U), we use the approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Gonzales v. Duenas–Alvarez, 549 U.S. 183, 185–87, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). That approach—deemed the “categorical approach”—requires that courts “ ‘look only to the statutory definitions'— i.e., the elements—of a defendant's prior offenses, and not ‘to the particular facts underlying those convictions' ” when making a comparison between a prior convictionand a federal, generic crime. Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143). If the state statute under which the defendant was previously convicted has the same elements as, or is narrower than, the federal, generic crime, then the prior conviction can serve as an aggravated felony predicate. Id. However, if the state “statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an [aggravated felony] predicate, even if the defendant actually committed the offense in its generic form.” Id.

For the limited purpose of “help[ing to] implement the categorical approach,” id. at 2285, the Court has recognized a “narrow range of cases” in which courts may apply the “modified categorical approach,” id. at 2283 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143) (internal quotation marks omitted). The modified categorical approach allows courts to look beyond the statutory text to a limited set of documents to determine the elements of the state offense of which the defendant was convicted when some alternative elements of the state crime would match the federal, generic crime, and other alternative elements would not. See id. at 2285. Recently, the Supreme Court in Descamps explained that courts may use the modified categorical approach only when a statute is divisible—i.e., “lists multiple, alternative elements, and so effectively creates ‘several different ... crimes.’ ” Id. (quoting Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 2303, 174 L.Ed.2d 22 (2009)) (emphasis added). The Court contrasted divisible statutes with those that are indivisible—i.e., contain a “single, indivisible set of elements” constituting a single crime—for which the modified categorical approach is inappropriate. Id. at 2282. This decision abrogated our earlier decision in United States v. Aguila–Montes de Oca, 655 F.3d 915, 927–28 (9th Cir.2011) (en banc), in which we had asserted that courts could use the modified categorical approach when a statute is indivisible, yet missing an element of the federal, generic crime. Thus, after Descamps we may apply the modified categorical approach only when the state statute at issue is divisible.⁵ If the state statute at issue is overbroad and indivisible, we may not apply the modified categorical approach, and we must hold that petitioner has met his burden for establishing that he was not convicted of an aggravated felony.⁶

II

A.

In this case, the BIA applied the modified categorical approach to determine that petitioner's conviction under California Penal Code section 459 was an attempted theft offense, which is an aggravated felony under 8 U.S.C. § 1101(a)(43)(U) and 8 U.S.C. § 1101(a)(43)(G). We review only whether petitioner's conviction qualifies as an attempted theft offense because “[o]ur review is limited to the BIA's decision and the grounds” upon which it found petitioner ineligible for cancellation of removal. Vargas–Hernandez v. Gonzales, 497 F.3d 919, 921–22 (9th Cir.2007).⁷

As an initial matter, California Penal Code section 459 is not a categorical match to the federal, generic crime of an attempted theft offense because section 459 punishes a broader range of conduct than a generic attempted theft offense. Section 459 states, inter alia, that “[e]very person who enters any ... vehicle ..., when the doors are locked, ... with intent to commit grand or petit larceny or any felony is guilty of burglary” (emphasis added). A generic attempted theft offense includes two elements: “[1] an intent to commit a theft offense ... [and] [2] an overt act constituting a substantial step...