Rodolfo Avina-Rodriguez v. Eric Holder, Jr. , 535 F. App'x 552 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RODOLFO AVINA-RODRIGUEZ, a.k.a. No. 11-73979
Rodolfo Avina, a.k.a. Rodolfo Rodriguez,
Agency No. A092-600-997
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Rodolfo Avina-Rodriguez, a native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from an immigration judge’s decision denying his application for
cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. Reviewing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
de novo questions of law, Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1038
(9th Cir. 2011), we deny the petition for review.
The BIA correctly concluded that Avina-Rodriguez’s two convictions under
California Penal Code § 484(a) and § 666, each resulting in a 2-year prison
sentence, constitute aggravated-felony theft offenses under 8 U.S.C.
§ 1101(a)(43)(G) that render him removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
and statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3)
because a modified-categorical analysis of the felony complaints, read in
conjunction with the abstracts of judgment, establishes that Avina-Rodriguez
pleaded to unlawfully stealing, taking, and carrying away the personal property of
Home Depot and Walmart. See United States v. Rivera, 658 F.3d 1073, 1077-78
(9th Cir. 2011) (concluding that a plea to a complaint alleging that the petitioner
“‘did unlawfully and in violation of Penal Code Section 484(a), steal take and carry
away the personal property of WAL-MART’” established that he “was convicted
of a generic theft offense”); see also Ramirez-Villalpando, 645 F.3d at 1041
(relying on an abstract of judgment and a felony complaint to conclude that the
petitioner had pleaded guilty to an aggravated-felony theft offense).
PETITION FOR REVIEW DENIED.
2 11-73979