David Chavez v. Loretta E. Lynch , 631 F. App'x 471 ( 2016 )

FILED
UNITED STATES COURT OF APPEALS JAN 21 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
DAVID CHAVEZ, No. 11-73977
Petitioner, Agency No. A070-911-147
v.
ORDER
LORETTA E. LYNCH, Attorney General,
Respondent.
Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.
We amend the memorandum disposition filed on August 6, 2015. We file an
amended memorandum disposition in light of the en banc decision in Almanza-
Arenas v. Lynch, No. 09-71415. The mandate shall issue in the ordinary course.
IT IS SO ORDERED.
FILED
NOT FOR PUBLICATION JAN 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CHAVEZ, No. 11-73977
Petitioner, Agency No. A070-911-147
v. AMENDED
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 3, 2015**
Pasadena, California
Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.
David Chavez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’s (BIA) decision dismissing his appeal from an
Immigration Judge’s (IJ) order of removal. We have jurisdiction pursuant to 8
U.S.C. § 1252(a)(2)(D), and we grant the petition.
*
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).
The BIA erred as a matter of law when it applied the modified categorical
approach to conclude that Chavez’s conviction for petty theft with priors in
violation of California Penal Code §§ 484(a) and 666 constituted an aggravated
felony theft offense. See 8 U.S.C. §§ 1101(a)(43)(G); 1227(a)(2)(A)(iii).
California law does not require the jury to unanimously agree as to which of the
disjunctively worded forms of theft set forth in § 484(a) is the basis for the
defendant’s conviction. See People v. Fenderson, 116 Cal. Rptr. 3d 17, 27 (Cal.
Ct. App. 2010); People v. McLemore, 32 Cal. Rptr. 2d 687, 689 (Cal. Ct. App.
1994). As a result, the statute is not divisible and the modified categorical
approach is inapplicable. See Descamps v. United States, 133 S. Ct. 2276, 2282,
2285 (2013); Almanza-Arenas v. Lynch, No. 09-71415, 2015 WL 9462976, at *6
(9th Cir. Dec. 28, 2015) (en banc); Rendon v. Holder, 764 F.3d 1077, 1081, 1086
(9th Cir. 2014).
Because the modified categorical approach does not apply and “a petty theft
conviction, under Cal. Penal Code §§ 484(a) and 666, is not a categorical match to
the federal definition of a theft offense,” United States v. Rivera, 658 F.3d 1073,
1077 (9th Cir. 2011), the BIA erred when it concluded that Chavez was removable
as charged under 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii).
Petition Granted.
2