Gilberto Arteaga-Huerta v. Michael Mukasey , 356 F. App'x 883 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2961
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Gilberto Arteaga-Huerta, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
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Eric H. Holder, Jr., Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: December 2, 2009
Filed: December 7, 2009
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Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
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PER CURIAM.
Gilberto Arteaga-Huerta, a native of Mexico, petitions for review of a Board of
Immigration Appeals order affirming an immigration judge’s (IJ’s) decision holding
him removable and ineligible for cancellation of removal. We deny the petition.
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Eric H. Holder, Jr. has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
Arteaga-Huerta conceded removability based on a drug offense, amphetamine
possession, in violation of Cal. Health & Safety Code § 11377(a) (unauthorized
possession of controlled substance). See 8 U.S.C. § 1227(a)(2)(B)(i) (alien convicted
of state or federal controlled substance offense, other than possession of 30 grams or
less of marijuana, is deportable). He filed an application for cancellation of removal,
asserting his conviction on his guilty plea under Cal. Veh. Code § 10851(a) (theft and
unlawful driving or taking of vehicle), for which he was sentenced to a year and four
months in prison, is not an aggravated felony rendering him ineligible under 8 U.S.C.
§ 1229b(a)(3) (Attorney General may cancel removal of deportable alien who shows,
among other things, “he has not been convicted of any aggravated felony”); id.
§ 1101(a)(43)(G) (“[a]ggravated felony” includes a state or federal “theft offense . . .
for which the term of imprisonment [is] at least one year”).
The IJ and Board found Arteaga-Huerta ineligible, applying the decision in
Matter of V-Z-S, 22 I & N Dec. 1338 (BIA 2000) (conviction under Cal. Veh. Code
§ 10851(a) qualifies categorically as theft offense within meaning of
§ 1101(a)(43)(G)). See Matter of Garcia-Madruga, 24 I & N Dec. 436, 440-41 (BIA
2008) (“theft offense within the meaning of [§ 1101(a)(43)(G)] consists of the taking
of, or exercise of control over, property without consent whenever there is criminal
intent to deprive the owner of the rights and benefits of ownership, even if such
deprivation is less than total or permanent”); see also Gonzales v. Duenas-Alvarez,
549 U.S. 183, 189 (2007) (applying this definition when deciding “theft offense” in
§ 1101(a)(43)(G) includes crime of aiding and abetting Cal. Veh. Code § 10851(a)
theft offense; declining to decide whether the term encompasses joyriding or
accessories after the fact).
Arteaga-Huerta argues Cal. Veh. Code § 10851(a) encompasses conduct falling
outside the generic definition of “theft offense,” because it extends liability to an
accessory after the fact, and because it encompasses “joyriding.” Arteaga-Huerta thus
contends the modified categorical approach should be used to determine whether his
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offense is a theft offense within the meaning of § 1101(a)(43)(G), relying on Penuliar
v. Mukasey, 528 F.3d 603, 611-12 (9th Cir. 2008) (holding § 10851(a) conviction
does not categorically qualify as theft offense because it extends liability to
accessories after the fact, who lack intent to deprive the owner of ownership, and
documents charging alien were insufficient to show he committed generic theft
offense within meaning of § 1101(a)(43)(G) because the indictment merely recited the
statutory language of § 10851(a) and did not “narrow[] the charge to generic limits”).
Reviewing the issue de novo, see Omar v. I.N.S., 298 F.3d 710, 715 (8th Cir.
2002), we conclude that even if § 10851(a) convictions do not categorically fall within
the federal generic theft definition for the purpose of § 1101(a)(43)(G), the record
shows Arteaga-Huerta was convicted of generic theft under the modified categorical
approach. Arteaga-Huerta pleaded guilty to a felony complaint charging that he and
another man “did unlawfully drive and take” a woman’s vehicle without her consent
“and with intent, either permanently or temporarily, to deprive [her] of title to and
possession of said vehicle,” in violation of § 10851(a). See Shepard v. United States,
544 U.S. 17, 20-21, 26 (2005) (in applying modified categorical approach in context
of guilty plea, court may consider terms of charging document, plea agreement, or
plea colloquy to determine whether plea necessarily rested on all elements of generic
crime). The charging document does not include the statute’s accessory language, but
instead narrows the statutory language to all of the elements of generic theft within the
meaning of § 1101(a)(43)(G). See id. at 21 (“details of a generically limited charging
document” may show whether plea necessarily rested on fact identifying crime as
generic); see also Arteaga v. Mukasey, 511 F.3d 940, 947-48 (9th Cir. 2007) (applying
modified categorical approach and holding § 10851(a) conviction for joyriding
qualified as aggravated felony under § 1101(a)(43)(G) where record showed alien was
convicted of taking vehicle with intent to at least temporarily deprive owner of
possession).
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In sum, we do not reach the question whether a § 10851(a) conviction is an
aggravated felony as a categorical matter, but instead conclude the conviction record
in this case makes clear that Arteaga-Huerta pleaded guilty, and was convicted of, an
aggravated felony theft offense. We thus deny Arteaga-Huerta’s petition for review.
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