764 F.3d 1077 (9th Cir. 2014), 10-72239, Rendon v. Holder

Docket Nº10-72239
Citation764 F.3d 1077
Opinion JudgeREINHARDT, Circuit Judge:
Party NameCARLOS ALBERTO RENDON, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent
AttorneyBrigit G. Alvarez (argued), Law Office of Brigit G. Alvarez, Los Angeles, California, 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 J...
Judge PanelBefore: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges. Opinion by Judge Reinhardt.
Case DateAugust 22, 2014
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1077

764 F.3d 1077 (9th Cir. 2014)

CARLOS ALBERTO RENDON, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General, Respondent

No. 10-72239

United States Court of Appeals, Ninth Circuit

August 22, 2014

Argued and Submitted, Pasadena, California: June 5, 2014.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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

SUMMARY[*]

Immigration

The panel granted Carlos Alberto Rendon's petition for review of the Board of Immigration Appeals' decision finding him statutorily ineligible for cancellation of removal based on his conviction for attempted second-degree burglary under California state law.

The panel held as an initial matter that California Penal Code § 459 is not a categorical match to the federal generic attempted theft offense because it punishes a broader range of conduct. The panel held that the BIA impermissibly applied the modified categorical approach to determine that Rendon's CPC § 459 conviction qualified as an attempted theft aggravated felony. The panel held that under Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), CPC § 459 is indivisible as a matter of law, and that in the language at issue: " with intent to commit grand or petit larceny or any felony," the use of the disjunctive " or" between " grand or petit larceny" and " any felony" did not render the statute divisible. The panel wrote that it necessarily follows from Richardson v. United States, 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), that the Supreme Court regards elements as circumstances upon which a jury must unanimously agree but regards means as circumstances on which the jury may disagree yet still convict. The panel held that determining whether a disjunctively worded statute is divisible or not requires looking to whether the state treats the parts of the statute on opposite sides of the " or" as alternative elements or alternative means. The panel held that the substantive crimes set forth in the language at issue are alternative means of satisfying the intent element of CPC § 459, and the statute is indivisible.

Brigit G. Alvarez (argued), Law Office of Brigit G. Alvarez, Los Angeles, California, 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.

Before: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges. Opinion by Judge Reinhardt.

OPINION

Page 1081

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, 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's

Page 1082

1996 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 conviction

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and a federal, generic crime. Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 600). 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) (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...

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  • 300 F.Supp.3d 1215 (D.Or. 2018), 6:06-cr-60050-MC, United States v. Savath
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • March 7, 2018
    ...the crime, only divisible statutes contain alternative elements of functionally separate crimes." Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). The key inquiry in determining a statute’s divisibility is whether a jury would have to be unanimous in f......
  • 300 F.Supp.3d 1215 (D.Or. 2018), 6:06-cr-60050-MC, United States v. Savath
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • March 7, 2018
    ...the crime, only divisible statutes contain alternative elements of functionally separate crimes." Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). The key inquiry in determining a statute’s divisibility is whether a jury would have to be unanimous in f......
  • 965 F.3d 1091 (9th Cir. 2020), 18-72731, Dominguez v. Barr
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 21, 2020
    ...conviction, we may then determine whether Page 1100 those elements are a match to the generic federal offense. See Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (explaining that the modified categorical approach serves the limited purpose of "helping to impl......
  • 374 F.Supp.3d 977 (E.D.Cal. 2019), 1:09-cr-00466-LJO-1, United States v. Minjarez
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of California
    • March 14, 2019
    ...that the Court’s inquiry will be confined to the pure categorical approach. Dixon, 805 F.3d at 1198; see also Rendon, 764 F.3d at 1088. Thus, the Court’s task is to compare Page 987 elements of CPC § 211 with the relevant generic offense definitions of § 3559(c) to deter......
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165 cases
  • 300 F.Supp.3d 1215 (D.Or. 2018), 6:06-cr-60050-MC, United States v. Savath
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • March 7, 2018
    ...the crime, only divisible statutes contain alternative elements of functionally separate crimes." Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). The key inquiry in determining a statute’s divisibility is whether a jury would have to be unanimous in f......
  • 300 F.Supp.3d 1215 (D.Or. 2018), 6:06-cr-60050-MC, United States v. Savath
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • March 7, 2018
    ...the crime, only divisible statutes contain alternative elements of functionally separate crimes." Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). The key inquiry in determining a statute’s divisibility is whether a jury would have to be unanimous in f......
  • 965 F.3d 1091 (9th Cir. 2020), 18-72731, Dominguez v. Barr
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 21, 2020
    ...conviction, we may then determine whether Page 1100 those elements are a match to the generic federal offense. See Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (explaining that the modified categorical approach serves the limited purpose of "helping to impl......
  • 374 F.Supp.3d 977 (E.D.Cal. 2019), 1:09-cr-00466-LJO-1, United States v. Minjarez
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of California
    • March 14, 2019
    ...that the Court’s inquiry will be confined to the pure categorical approach. Dixon, 805 F.3d at 1198; see also Rendon, 764 F.3d at 1088. Thus, the Court’s task is to compare Page 987 elements of CPC § 211 with the relevant generic offense definitions of § 3559(c) to deter......
  • Request a trial to view additional results
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