David Chavez v. Loretta E. Lynch ( 2015 )


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  •                             NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                         FILED
    FOR THE NINTH CIRCUIT                          AUG 06 2015
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    DAVID CHAVEZ,                                    No. 11-73977
    Petitioner,                        Agency No. A070-911-147
    v.
    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); 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).
    2
    Petition Granted.
    3
    

Document Info

Docket Number: 11-73977

Judges: Nelson, Silverman, Wardlaw

Filed Date: 8/6/2015

Precedential Status: Non-Precedential

Modified Date: 10/19/2024