Pedro Jose Hernandez-Cruz v. Eric H. Holder Jr. , 651 F.3d 1094 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO JOSE HERNANDEZ-CRUZ, 
Petitioner, No. 08-73805
v.
 Agency No.
A092-964-221
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 3, 2011—Pasadena, California
Filed July 8, 2011
Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
9107
9110 HERNANDEZ-CRUZ v. HOLDER
COUNSEL
David G. Meyer of Jones Day, Los Angeles, California, and
Amber Finch of Reed Smith LLP, Los Angeles, California,
for petitioner Pedro Jose Hernandez-Cruz.
Joseph D. Hardy, Jr. and Blair O’Connor of the Office of
Immigration Litigation of the Civil Division of the U.S.
HERNANDEZ-CRUZ v. HOLDER 9111
Department of Justice, Washington, DC, for respondent Eric
H. Holder Jr.
OPINION
BERZON, Circuit Judge:
Pedro Jose Hernandez-Cruz, a native and citizen of Guate-
mala, was convicted twice for second-degree commercial bur-
glary, in violation of California Penal Code § 459. As a result,
the Board of Immigration Appeals (BIA) found him remov-
able as an alien convicted of an aggravated felony, and also
as an alien convicted of two crimes involving moral turpitude
(CIMTs). Hernandez-Cruz petitions for review, challenging
the determinations that the prior convictions are grounds for
removal.
The BIA held, first, that Hernandez-Cruz’s two second-
degree commercial burglary convictions were generic
attempted theft offenses, qualifying each as an aggravated fel-
ony, and therefore as a ground for removal.1 See 8 U.S.C.
§ 1227(a)(2)(A)(iii). Noting that the two elements of a generic
attempted theft offense are an intent to commit a theft offense
and an overt act constituting a substantial step toward the
completion of that offense, the BIA employed the modified
categorical approach and held that Hernandez-Cruz necessar-
ily admitted both when he pleaded guilty in each instance to
“enter[ing] a commercial building . . . with the intent to com-
mit larceny and any felony.” According to the BIA, the “sub-
1
By a “generic” offense, we mean one that contains the elements of the
federal definition of the crime in question. See Taylor v. United States,
495 U.S. 575, 598 (1990). The generic definition of burglary, for example,
has the following elements: “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.”
Id. A state statute would qualify as generic burglary, therefore, if it con-
tains at least those elements.
9112 HERNANDEZ-CRUZ v. HOLDER
stantial step” that Hernandez-Cruz necessarily admitted was
“entering the building where the property sought to be stolen
was located.” Second, the BIA held that the two commercial
burglary convictions were CIMTs under Ninth Circuit prece-
dent, providing an alternate ground for Hernandez-Cruz’s
removal. See 8 U.S.C. § 1227(a)(2)(A)(ii).
Simply entering a commercial building, however, is not in
itself a “substantial step” supporting attempted theft liability.
The BIA thus erred in holding that Hernandez-Cruz’s convic-
tions are generic attempted theft offenses. Similarly, the BIA
erred in concluding that the convictions qualified as CIMTs,
either because it misapprehended the elements of the crime of
conviction or because it misread our caselaw. We therefore
grant the petition for review.
FACTUAL AND PROCEDURAL HISTORY
Hernandez-Cruz is 52 years old. He has been lawfully and
continually present in the United States for thirty years and a
lawful permanent resident (LPR) for twenty. The Govern-
ment’s efforts to remove Hernandez-Cruz are based on two
convictions for second-degree burglary under § 459 of the
California Penal Code, which provides in relevant part that
“[e]very person who enters any . . . shop, . . . store, . . . or
other building . . . with intent to commit grand or petit larceny
or any felony is guilty of burglary.”2
On June 15, 2006, Hernandez-Cruz entered a Los Angeles
supermarket during normal business hours, placed three cases
of beer (retail value: $42.62) in a shopping cart, and pushed
the cart out of the store without paying. The supermarket’s
security guard confronted Hernandez-Cruz in the parking lot
and held him until the police arrived. Hernandez-Cruz was
2
California law provides, as a general matter, that burglary of an inhab-
ited dwelling or vessel is in the first degree, while all other burglaries are
in the second degree. See Cal. Penal Code § 460.
HERNANDEZ-CRUZ v. HOLDER 9113
subsequently charged in a two-count felony complaint. Count
One of the complaint alleged:
On or about June 15, 2006, in the County of Los
Angeles, the crime of SECOND DEGREE COM-
MERCIAL BURGLARY, in violation of PENAL
CODE SECTION 459, a Felony, was committed by
PEDRO HERNANDEZCRUZ, [sic] who did enter a
commercial building occupied by NORTHGATE
SUPERMARKET with the intent to commit larceny
and any felony.
Count Two charged “petty theft with priors” in violation of
California Penal Code § 666, which provides for a harsher
maximum sentence for petty theft if the defendant previously
served a term of imprisonment for a theft offense. As part of
a plea bargain, Hernandez-Cruz pleaded no contest3 to Count
One, and his attorney agreed to “stipulate to a factual basis
based on the police report.”4 In exchange, Count Two, the
theft charge, was dismissed, and the imposition of Hernandez-
Cruz’s sentence on Count One was suspended pending the
successful completion of three years’ probation.
About five months later, Hernandez-Cruz was arrested for
walking out of a different supermarket with $68.46 in food
items he had not paid for. Hernandez-Cruz was again charged
in a two-count felony complaint, the first count of which
alleged as follows:
3
In California, the legal effect of a no contest (or “nolo contendere”)
plea to a felony offense is “the same as that of a plea of guilty for all pur-
poses.” Cal. Penal Code § 1016(3). Accordingly, for the sake of conve-
nience, we refer to both pleas as “guilty” pleas.
4
California law requires that courts “cause an inquiry to be made of the
defendant to satisfy itself . . . that there is a factual basis for the plea.” Cal.
Penal Code § 1192.5. The California Supreme Court has explained that
this obligation is met when “the trial court inquires of defense counsel
regarding the factual basis, [and] counsel . . . stipulate[s] to a particular
document that provides an adequate factual basis, such as a . . . police
report.” People v. Holmes, 84 P.2d 366, 372 (Cal. 2004).
9114 HERNANDEZ-CRUZ v. HOLDER
On or about November 15, 2006, in the County of
Los Angeles, the crime of SECOND DEGREE
COMMERCIAL BURGLARY, in violation of
PENAL CODE SECTION 459, a Felony, was com-
mitted by PEDRO JOSECRUZ [sic] HERNANDEZ,
who did enter a commercial building occupied by
FOOD 4 LESS with the intent to commit larceny and
any felony.
Pursuant to a plea agreement, Hernandez-Cruz pleaded guilty
to Count One and was sentenced to 16 months’ imprisonment.
His attorney again stipulated that the police report provided a
factual basis for the plea. A second count, which, like the
complaint in the earlier case, alleged petty theft with priors,
was dismissed. At the same hearing, Hernandez-Cruz was
found to be in violation of his probation on the June 2006
offense. His probation was revoked, and he was sentenced to
16 months’ imprisonment for the earlier conviction, to run
concurrently with the 16 months he would serve for the later
one.
Hernandez-Cruz was paroled on July 26, 2007, but released
to the custody of Immigration and Customs Enforcement
(ICE). He was denied immigration bond and so remains in
immigration detention.
ICE served Hernandez-Cruz with a Notice to Appear,
charging him with being removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii)5 as an alien convicted of the aggravated
felony of a theft or burglary offense, as defined in 8 U.S.C.
§ 1101(a)(43)(G).6 This charge of removability was based on
the conviction for the November 2006 offense.
5
“Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).
6
“The term ‘aggravated felony’ means . . . a theft offense (including
receipt of stolen property) or burglary offense for which the term of
imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G).
HERNANDEZ-CRUZ v. HOLDER 9115
Hernandez-Cruz appeared in immigration court for the first
time about a week later. At that hearing, the Government
lodged a second charge of removability, this one under 8
U.S.C. § 1227(a)(2)(A)(ii),7 alleging that Hernandez-Cruz was
removable because he was convicted of two or more crimes
of moral turpitude not arising out of a single scheme of crimi-
nal misconduct—to wit, the two separate California commer-
cial burglary offenses. The Immigration Judge (IJ) explained
the charges to Hernandez-Cruz and asked him if he would like
additional time to find an attorney; when he said that he
would, the IJ continued the hearing.
Hernandez-Cruz appeared for his next hearing on Decem-
ber 17, 2007, and stated that he would proceed without an
attorney. After Hernandez-Cruz admitted the Government’s
factual allegations—in particular, that he was convicted of
second-degree burglary for each of the two offenses—the IJ
examined the records submitted by the Government to deter-
mine whether the convictions constituted aggravated felonies
and/or CIMTs.8 On the basis of those records, the IJ deter-
mined that the convictions were not generic burglary offenses,
as California’s burglary statute does not require the entry to
be either unlawful or unprivileged, whereas the federal
generic definition does. See Taylor, 495 U.S. at 599. The IJ
proceeded to hold, however, that the police reports demon-
strated that the convictions qualified as generic theft offenses.
That determination, coupled with the fact that Hernandez-
Cruz was sentenced to more than a year for each conviction,
led the IJ to conclude that his convictions were for aggravated
felonies. The IJ made no specific finding with regard to the
7
“Any alien who at any time after admission is convicted of two or
more crimes involving moral turpitude, not arising out of a single scheme
of criminal misconduct, regardless of whether confined therefor and
regardless of whether the convictions were in a single trial, is deportable.”
8 U.S.C. § 1227(a)(2)(A)(ii).
8
Specifically, the IJ examined the felony complaints, the abstracts of
judgment, the transcripts of the change of plea and sentencing hearings,
and the police reports.
9116 HERNANDEZ-CRUZ v. HOLDER
Government’s allegation that the convictions also constituted
CIMTs but ordered Hernandez-Cruz removed on that basis as
well.
On appeal, the BIA reversed. The BIA noted that although
the definition of a generic theft offense, as provided in
Arteaga v. Mukasey, 511 F.3d 940, 947 (9th Cir. 2007),
requires as an element the taking of property, the statute of
conviction, California Penal Code § 459, has no such element.
Accordingly, the BIA held, a conviction under § 459 is not a
generic theft offense. The BIA stated in a footnote, however,
that “[u]nder the modified categorical approach, [Hernandez-
Cruz’s] offense might have been chargeable as an attempted
theft. But no such charge was lodged.” The BIA deferred con-
sideration of the IJ’s holding on the CIMTs charge because
the holding was unexplained, and remanded the case.
On remand, the Government filed an additional charge of
removability, alleging that Hernandez-Cruz was subject to
removal under 8 U.S.C. § 1101(a)(43)(G) & (U) for having
been convicted of a different aggravated felony, a generic
attempted theft offense.9 The Government’s new charge did
not add any factual allegations or specify the conviction on
which it was based.10
9
Subsection (G) of 8 U.S.C. § 1101(a)(43), as previously stated, defines
“aggravated felony” to include “a theft offense . . . for which the term of
imprisonment [is] at least one year,” while subsection (U) provides that
“an attempt or conspiracy to commit an offense described in this para-
graph” also constitutes an aggravated felony. 8 U.S.C. § 1101(a)(43)(G)
& (U).
10
In light of our holding, we do not consider Hernandez-Cruz’s argu-
ment that the failure to specify the conviction on which the new charge of
removability was based violated his due process rights. See 8 U.S.C.
§ 1229(a)(1)(C) (requiring the charging document in removal proceedings
to include “[t]he acts or conduct alleged to be in violation of law.”); 8
C.F.R. § 1003.15(b)(3) (same); Cardoso-Tlaseca v. Gonzales, 460 F.3d
1102, 1107 (9th Cir. 2006).
HERNANDEZ-CRUZ v. HOLDER 9117
Upon consideration of the same documents examined
before, the IJ held, first, that the crimes were theft offenses,
and therefore CIMTs, meaning that Hernandez-Cruz was
removable for having committed two CIMTs. Second, the IJ
determined that because the crimes were theft offenses, they
also necessarily constituted generic attempted theft offenses,
making them aggravated felonies, and rendering Hernandez-
Cruz removable on that basis as well.
Hernandez-Cruz filed an appeal with the BIA, which was
ultimately dismissed. The BIA held: (1) that the conviction
documents established that Hernandez-Cruz’s convictions
were for CIMTs, as both “resulted from pleas in which he
stipulated, through counsel, that he had entered buildings with
the intent to commit larceny, a CIMT in the Ninth Circuit”;
and (2) that each conviction also qualified as an attempted
theft offense and therefore as an aggravated felony, because
Hernandez-Cruz’s “convicted conduct reflects both the intent
to commit a ‘theft offense’ and also the commission of an
‘overt act’ constituting a ‘substantial step’ toward the comple-
tion of such an offense, i.e., entering the building where the
property sought to be stolen was located.”11
Hernandez-Cruz, still proceeding pro se, filed a timely peti-
tion for review, along with a motion to proceed in forma
pauperis, for a stay of removal, and for the appointment of
pro bono counsel. The Government opposed Hernandez-
Cruz’s motions and filed its own, requesting summary affir-
mance. A two-judge panel denied the Government’s motion
and granted all three of petitioner’s motions.
11
Although the aggravated felony convictions rendered Hernandez-Cruz
ineligible for cancellation of removal, see 8 U.S.C. § 1229b(a)(3), the IJ
had nonetheless evaluated and denied as a matter of discretion his applica-
tion for cancellation in the event that the BIA reversed the aggravated fel-
ony holding alone. On appeal, the BIA agreed with the IJ’s holding that,
even if eligible, Hernandez-Cruz should be denied cancellation of removal
as a matter of discretion.
9118 HERNANDEZ-CRUZ v. HOLDER
DISCUSSION
An immigrant convicted of an aggravated felony after
being admitted to this country is removable. See 8 U.S.C.
§ 1227(a)(2)(A)(iii). Similarly, an immigrant is removable if,
after being admitted, he is convicted of two or more CIMTs
that did “not aris[e] out of a single scheme of criminal mis-
conduct.” 8 U.S.C. § 1227(a)(2)(A)(ii). As mentioned, the
BIA held that Hernandez-Cruz’s convictions were both aggra-
vated felonies and CIMTs. We address each holding in turn.
I.
[1] Under the Immigration and Nationality Act (INA), a
conviction for a generic attempted theft offense that results in
a prison term of at least one year is an aggravated felony. See
8 U.S.C. § 1101(a)(43)(G) & (U).12 We review de novo the
BIA’s determination that Hernandez-Cruz’s convictions were
for generic attempted theft offenses. See Ngaeth v. Mukasey,
545 F.3d 796, 800 (9th Cir. 2008) (per curiam). To do so, we
use the categorical and modified categorical approaches of
Taylor v. United States, 495 U.S. 575 (1990), and Shepard v.
United States, 544 U.S. 13 (2005). Under those approaches,
we compare the crime of conviction (here, Hernandez-Cruz’s
convictions under California Penal Code § 459) with the
generic crime (here, attempted theft) to determine whether the
latter encompasses the former. See Ngaeth, 545 F.3d at
800-01.
[2] Under the categorical approach, a conviction under
§ 459 qualifies as a generic attempted theft offense “if the full
range of conduct covered by [§ 459] falls within the . . . defi-
nition of” a generic attempted theft offense. Id. at 800 (cita-
tion and quotation marks omitted). Ngaeth defined a generic
attempted theft offense as having two elements: “[1] an intent
to commit a theft offense, of the sort generically defined by
12
See note 9, supra, for the text of these statutory provisions.
HERNANDEZ-CRUZ v. HOLDER 9119
[our precedent], coupled with [2] an overt act constituting a
substantial step towards the commission of the offense.” Id.
at 801. A generic theft offense, in turn, is defined as: “[1] a
taking of property or an exercise of control over property [2]
without consent [3] with the criminal intent to deprive the
owner of rights and benefits of ownership, even if such depri-
vation is less than total or permanent.” Carrillo-Jaime v.
Holder, 572 F.3d 747, 750 (9th Cir. 2009) (citation and quota-
tion marks omitted, alterations in original).
[3] Section 459 has three elements: (1) entry, (2) into any
building, certain vehicles and vessels, or other listed struc-
tures and containers, (3) with the intent to commit larceny or
any felony. See People v. Davis, 958 P.2d 1083, 1085 (Cal.
1998).13 As we recognized in Ngaeth, § 459 criminalizes con-
duct beyond generic attempted theft offenses—for example,
entering a locked vehicle with the intent to commit not theft,
but arson or vandalism. See Ngaeth, 545 F.3d at 801. Because
one can be convicted under § 459 for a crime that does not
qualify as generic attempted theft, the statute is not a categori-
cal match for the generic aggravated felony offense. See id.
13
The statute provides in relevant part:
Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel, as defined in Section 21 of the Harbors and
Navigation Code, floating home, as defined in subdivision (d) of
Section 18075.55 of the Health and Safety Code, railroad car,
locked or sealed cargo container, whether or not mounted on a
vehicle, trailer coach, as defined in Section 635 of the Vehicle
Code, any house car, as defined in Section 362 of the Vehicle
Code, inhabited camper, as defined in Section 243 of the Vehicle
Code, vehicle as defined by the Vehicle Code, when the doors are
locked, aircraft as defined by Section 21012 of the Public Utili-
ties Code, or mine or any underground portion thereof, with
intent to commit grand or petit larceny or any felony is guilty of
burglary.
Cal. Penal Code § 459.
9120 HERNANDEZ-CRUZ v. HOLDER
[4] We therefore proceed with respect to the aggravated
felony issue to the modified categorical approach, under
which “we conduct a limited examination of documents in the
record of conviction to determine if there is sufficient evi-
dence to conclude that a defendant was convicted of the ele-
ments of the generically defined crime, without reviewing the
particular facts underlying the conviction.” Id. (citation and
quotation marks omitted). The BIA held that the first element
of the generic offense—“an intent to commit a theft offense,”
id.—was met because Hernandez-Cruz pleaded guilty to
entering a commercial building “with the intent to commit lar-
ceny and any felony.” Although that proposition is very
doubtful under California law,14 we need not decide whether
the first attempted theft element was met, as the second
clearly was not. Hernandez-Cruz’s guilty plea did not “neces-
sarily admit,” Shepard, 544 U.S. at 26, “an overt act constitut-
ing a substantial step towards the commission of the offense,”
Ngaeth, 545 F.3d at 801.
[5] In addressing what Hernandez-Cruz “necessarily
admit[ted],” it is critical to keep in mind that he was convicted
of commercial burglary, not an attempted theft offense of any
kind. So there was no determination or admission that
Hernandez-Cruz had taken a “substantial step” under the law
14
The BIA apparently believed that Hernandez-Cruz’s guilty plea admit-
ted that he entered the building with the intent to commit larceny and the
intent to commit some other felony. Although understandable, that conclu-
sion is incorrect; under California law, Hernandez-Cruz’s plea admitted
that he had one of those intentions, but not necessarily both. See, e.g., Peo-
ple v. Moussabeck, 68 Cal. Rptr. 3d 877, 881-82 (Cal. Ct. App. 2007)
(“[W]hen the accusatory pleading describes the crime in its statutory lan-
guage, but in the conjunctive (e.g., inflicted physical pain and mental suf-
fering; inflicted corporal punishment and an injury), the allegation is
treated as being in its statutory disjunctive. . . . [w]hen a crime can be
committed in more than one way, it is standard practice to allege in the
conjunctive that it was committed every way. Such allegations do not
require the prosecutor to prove that the defendant committed the crime in
more than one way.” (citation and quotation marks omitted, all but penul-
timate alteration in original)).
HERNANDEZ-CRUZ v. HOLDER 9121
of attempt; that legal question was simply not relevant to the
crime for which Hernandez-Cruz was convicted.
[6] The BIA nonetheless identified what it thought was a
“substantial step” Hernandez-Cruz necessarily admitted: “en-
tering the building where the property sought to be stolen was
located.” It is true that Hernandez-Cruz “necessarily admit-
ted” entering a commercial building, as (1) “enter[ing]” (2) a
listed structure (including a store) are elements of the crime
to which he pleaded guilty. See Cal. Penal Code § 459; Davis,
958 P.2d at 1085. The question we must answer, therefore, is
whether entering a commercial building with the intent to pur-
loin items located therein is, as a matter of law, a “substantial
step” supporting a conviction for attempted theft. It is not.
A.
“Mere preparation” to commit a crime “does not constitute
a substantial step.” United States v. Buffington, 815 F.2d
1292, 1301 (9th Cir. 1987); see also United States v. Hofus,
598 F.3d 1171, 1174 (9th Cir. 2010), cert. denied, 131 S. Ct.
364 (2010); Walters v. Maass, 45 F.3d 1355, 1359 (9th Cir.
1995); Ninth Circuit Model Criminal Instruction 5.3 (2010)
(“Mere preparation is not a substantial step toward commit-
ting the crime.”). “The difference between making prepara-
tions and taking a substantial step toward the commission of
a crime is one of degree.” Walters, 45 F.3d at 1359.
“[I]dentifying the point at which the defendants’ activities
ripen into an attempt” can be difficult, and is rarely “an ana-
lytically satisfying enterprise.” United States v. Harper, 33
F.3d 1143, 1148 (9th Cir. 1994). What is clear, however, is
that “it is not enough that the defendant have intended to com-
mit a crime. There must also be an act, and not any act will
suffice.” Wayne R. LaFave, 2 Subst. Crim. L. § 11.4 (2d ed.
2003); see also United States v. Gracidas-Ulibarry, 231 F.3d
1188, 1192-93 (9th Cir. 2000) (en banc) (explaining the com-
mon law of attempt liability).
9122 HERNANDEZ-CRUZ v. HOLDER
[7] We have explained that a suspect crosses the line sepa-
rating preparation from attempt when his actions “unequivo-
cally demonstrat[e] that the crime will take place unless
interrupted by independent circumstances.” United States v.
Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam)
(quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir.
1995) (internal quotation marks omitted)); see also United
States v. Saavedra-Velazquez, 578 F.3d 1103, 1107 (9th Cir.
2009) (“[W]e have held that the ‘step toward commission of
the crime’ must be ‘of such substantiality that, unless frus-
trated, the crime would have occurred.’ ” (citation omitted));
Ninth Circuit Model Criminal Instruction 5.3 (2010) (“To
constitute a substantial step, a defendant’s act or actions must
demonstrate that the crime will take place unless interrupted
by independent circumstances.”). Although the suspect’s con-
duct “need not be incompatible with innocence to be punish-
able as an attempt, it must be necessary to the consummation
of the crime and be of such a nature that a reasonable
observer, viewing it in context, could conclude beyond a rea-
sonable doubt that it was undertaken in accordance with a
design to commit the [substantive offense].” Walters, 45 F.3d
at 1359 (citation, alteration, and quotation marks omitted). To
put it in slightly different terms, to constitute a “substantial
step,” the action in question must be “strongly corroborative
of the firmness of a defendant’s criminal intent.” United
States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006)
(citation and quotation marks omitted); see also Model Penal
Code § 5.01(2) (“Conduct shall not be held to constitute a
substantial step . . . unless it is strongly corroborative of the
actor’s criminal purpose.”).
[8] Our cases illustrate that it is not enough to say that the
suspect took certain necessary steps, even when intent is
unquestionably criminal. In United States v. Still, 850 F.2d
607 (9th Cir. 1988), for example, we held that the defendant
had made no substantial step toward the commission of bank
robbery when he was arrested after a witness saw him putting
on a long blond wig while sitting in a van, with its motor run-
HERNANDEZ-CRUZ v. HOLDER 9123
ning, approximately 200 feet from the bank. See id. at 608.
The defendant’s intent was crystal clear, as he stated to police
upon his arrest: “You did a good job. You caught me five
minutes before I was going to rob a bank. That’s what I was
putting the wig on for.” Id. Still nevertheless held that these
facts did not establish a substantial step, explaining that they
did not establish a sufficiently clear external manifestation of
the suspect’s specific intent to rob a particular bank in a par-
ticular manner in the immediate future. See id. at 610; see
also, e.g., Buffington, 815 F.2d at 1303; Harper, 33 F.3d at
1147-48.
The rationale for this requirement is at least twofold. First,
even after extensive preparations, a suspect could well decide
to desist from his criminal endeavor, an outcome in every-
one’s best interests.15 But if merely preparatory behavior is
held to be a substantial step supporting a conviction for
attempt, the would-be criminal has far less incentive to
change his mind at the last minute, and so might be more
likely to carry through with his plan. One of criminal law’s
most “basic premises,” moreover, is the notion that “bad
thoughts alone cannot constitute a crime.” LaFave, supra,
§ 11.4.
Second, unless and until the suspect’s behavior manifests
the firm commitment to perform a criminal act, the risk is too
high that we may have simply misinterpreted perfectly legal
behavior, particularly when it is borne of customs, practices,
or eccentricities that are not widely shared. See People v. Mil-
ler, 42 P.2d 308, 309 (Cal. 1935) (“[T]here is no evidence[,]
as a general rule, that can prove that a particular preparation
15
See LaFave, supra, § 11.4(c) (“All of us, or most of us, at some time
or other harbor what may be described as a criminal intent to effect unlaw-
ful consequences. Many of us take some steps—often slight enough in
character—to bring the consequences about; but most of us, when we
reach a certain point, desist, and return to our roles as law-abiding citi-
zens.” (quoting Robert H. Skilton, The Requisite Act in a Criminal
Attempt, 3 U. Pitt. L. Rev. 308, 310 (1937)).
9124 HERNANDEZ-CRUZ v. HOLDER
was designed for a particular end. Thus a gun may be bought
as well for hunting as for homicide.” (citation and quotation
marks omitted)). On the other hand, we do not require the
police to wait until the bank robber actually pulls out the gun
and demands access to the vault; delaying that long would
unnecessarily endanger public safety. See LaFave, supra,
§ 11.2(b) (“[P]olice must be allowed ‘a reasonable margin of
safety after the intent to commit the crime was sufficiently
apparent to them.’ ” (quoting Bell v. State, 163 S.E.2d 323,
325 (Ga. Ct. App. 1968)).
[9] The “substantial step” standard must therefore balance
competing considerations. The criminal law of attempt does
not assume the worst of people. Instead, through the substan-
tial step requirement, it gives some benefit of the doubt, wait-
ing to brand one a criminal until that moment when we can
say with some measure of assurance that a particular act is
taken with a criminal purpose that, but for timely intervention,
would have been fully realized. See Saavedra-Velazquez, 578
F.3d at 1107; Goetzke, 494 F.3d at 1237.
B.
We applied the foregoing principles in a case similar to this
one in Ngaeth. There, as here, the Government argued that the
immigrant’s prior conviction under California Penal Code
§ 459 constituted a generic attempted theft offense, and there-
fore an aggravated felony. See 545 F.3d at 799. Whereas
Hernandez-Cruz pleaded guilty to “enter[ing] a commercial
building . . . with the intent to commit larceny and any felo-
ny,” the immigrant in Ngaeth had pleaded guilty to “enter-
[ing] a locked motor vehicle . . . with the intent to commit
theft.” Id. (alterations and omissions in original, quotation
marks omitted).
There was no dispute in Ngaeth that the first element of the
generic offense—“an intent to commit a theft offense,” id. at
801—was met, as the count to which the immigrant pleaded
HERNANDEZ-CRUZ v. HOLDER 9125
guilty charged him with entering the locked vehicle “with the
intent to commit theft.”16 See id. at 802 (quotation marks
omitted). The only remaining question was whether Ngaeth
had necessarily admitted the second element of the generic
offense: a substantial step toward the commission of the
intended theft offense. Id. at 801. Ngaeth held that he had, as
“entering a ‘vehicle . . . when the doors are locked’ clearly
constitutes a substantial step towards committing a theft.” Id.
at 802 (quoting Cal. Penal Code § 459 (omission in original)).
The logic underlying that holding is plain: there are few
legitimate, lawful reasons to break into a locked vehicle. Cer-
tainly, the larger context might matter, but a reasonable
observer likely could conclude that someone breaking into a
locked vehicle is about to commit a theft offense (either of the
automobile or of something it contains).17 Having gone that
far in committing such an offense, moreover, the suspect is
unlikely to desist before completing the crime. In short,
breaking into a locked vehicle strongly corroborates a crimi-
nal purpose to commit a theft offense; therefore, it can be a
substantial step supporting attempt liability. See Model Penal
Code § 5.01(2)(d) (listing several types of conduct that a jury
could find constitute a substantial step, including the “unlaw-
ful entry of a . . . vehicle . . . in which it is contemplated that
the crime will be committed” (emphasis added)).
16
There was also no dispute in Ngaeth that the immigrant’s intent in
breaking into the locked vehicle was to commit a generic theft offense, as
opposed to some other kind of theft offense included in California’s lar-
ceny statute, Cal. Penal Code § 484, which criminalizes some conduct,
such as theft of labor and false credit reporting, that do not meet the
generic definition. See United States v. Corona-Sanchez, 291 F.3d 1201,
1208 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G.
§ 2L1.2, cmt. n.4 (2002); see also Gonzales v. Duenas-Alvarez, 549 U.S.
183, 189-90 (2007).
17
Of course, there are circumstances under which someone might law-
fully break into a locked car—in particular, if she owns the vehicle, but
has lost the key. But it is not likely that someone in that situation would
have the intent required to violate the statute.
9126 HERNANDEZ-CRUZ v. HOLDER
[10] Turning to Hernandez-Cruz’s case, it should be appar-
ent that entering a commercial building in no way corrobo-
rates a criminal purpose to commit a theft offense, much less
strongly so. Unlike breaking into a locked vehicle, there is no
reason to suspect that someone intends to commit a theft
offense from his mere entry into a commercial building, at
least when he does so during normal business hours, as
Hernandez-Cruz did. While entering a supermarket is, of
course, a necessary step toward shoplifting therein, the entry
alone gives no indication that “the crime will take place
unless interrupted by independent circumstances,” Morales-
Perez, 467 F.3d at 1222 (citation and quotation marks omit-
ted). Not only does everyone who goes to the supermarket for
entirely lawful purposes act in precisely the same manner, but
their numbers dwarf the number of people who enter intend-
ing to shoplift. To hold that simply entering the building sup-
ports attempt liability is to abandon altogether the requirement
that the “substantial step” permit the reasonable observer to
discriminate between those with a criminal purpose and those
without. See Walters, 45 F.3d at 1359. In short, entering a
commercial building freely open to the public is not strongly
corroborative of a criminal intent, and therefore cannot be a
substantial step toward a theft offense. See Hofus, 598 F.3d at
1174; Saavedra-Velazquez, 578 F.3d at 1110; Goetzke, 494
F.3d at 1237; Gracidas-Ulibarry, 231 F.3d at 1192; Walters,
45 F.3d at 1359; cf. Model Penal Code § 5.01(2)(d) (stating
that a jury could find that the “unlawful entry of a structure”
is a substantial step towards the commission of a crime
therein (emphasis added)).18
18
State courts called upon to consider what actions support a conviction
for attempted shoplifting generally hold that the suspect must have taken
active steps to conceal the merchandise or have attempted to leave the
store without paying, or both. See, e.g., Illinois v. Falgares, 328 N.E.2d
210, 211 (Ill. App. Ct. 1975) (“The substantial step was taken when the
defendant placed the merchandise in his bag, and passed a checkout
counter into another department.”); Vaughn v. Indiana, 426 N.E.2d 113,
115 (Ind. Ct. App. 1981) (holding that the defendant took a substantial
step toward larceny by stuffing a skirt and blouse into his jacket sleeve,
HERNANDEZ-CRUZ v. HOLDER 9127
[11] Unlike generic attempted theft, California commercial
burglary does not have as an element both an intent to commit
theft and an overt act that is a substantial step toward doing
so; only an intent to commit theft or a felony when entering
is required. Even if one assumes, as we are doing, that
Hernandez-Cruz intended to commit theft when entering, his
guilty plea to commercial burglary did not “necessarily
admit,” Shepard, 544 U.S. at 26, the requisite substantial step,
as mere entry cannot be such a step. In sum, Hernandez-
Cruz’s convictions under § 459 were not for generic
attempted theft offenses. Consequently, they are not aggra-
vated felonies, and Hernandez-Cruz is not removable under 8
U.S.C. § 1227(a)(2)(A)(iii) by reason of their commission.
II.
The INA does not define the term “moral turpitude” or list
CIMTs. So the BIA must consider on a case-by-base basis
and commenting that: “Packing a store’s garments into the sleeve of a
jacket is a most peculiar manner of shopping. These actions were more
than a trivial, preliminary step in the course of executing a theft.”); Mis-
souri v. Shivelhood, 946 S.W.2d 263, 266 (Mo. Ct. App. 1997)
(“Defendant’s act of concealing the items in the shopping cart with a coat
was a ‘substantial step’ towards the commission of that offense. His
actions were strongly corroborative of the firmness of his intent to steal
the items he concealed under the coat, and were indicative of his purpose
to complete the theft.”); Ohio v. McGhee, 2007 Ohio 6527, ¶ 20 (Ohio Ct.
App. 2007) (finding a substantial step toward larceny when the defendant,
while in a Rite Aid store, “removed merchandise from different aisles,
placed the items on a shelf, and stuffed them into a plastic ‘Rite Aid’
shopping bag . . . [and] secured the plastic bag from his coat pocket”); cf.
North Carolina v. Jacobs, 230 S.E.2d 550, 551-52 (N.C. Ct. App. 1976)
(reversing an attempted robbery conviction because the defendant’s entry
into a hardware store with a pistol on his belt “raises a suspicion that [he]
may have intended to commit a robbery or other crime but falls short of
showing an overt act in furtherance of an intent to rob”). We are unaware
of any case holding that merely entering a commercial building during
normal business hours constitutes a substantial step toward larceny, and
the Government has not cited any.
9128 HERNANDEZ-CRUZ v. HOLDER
whether a particular crime involves moral turpitude. See
Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir.
2009) (en banc). The BIA’s determination that a petitioner has
been convicted of a CIMT proceeds in two steps, with differ-
ent standards of review applying to each step. Id. at 907-08.
“First, the BIA must identify the elements of the statute
necessary to secure a conviction.” Uppal v. Holder, 605 F.3d
712, 714 (9th Cir. 2010). The BIA has no special expertise in
construing state and federal criminal statutes, so we review de
novo its determination at step one. Id. “Second, once it identi-
fies the elements of the statute, the BIA must compare those
elements to the generic definition of a crime involving moral
turpitude and decide whether they meet the definition.” Id.;
see also Mendoza v. Holder, 623 F.3d 1299, 1302-03 (9th Cir.
2010); Fregozo v. Holder, 576 F.3d 1030, 1035 (9th Cir.
2009); Morales-Garcia v. Holder, 567 F.3d 1058, 1066 n.4
(9th Cir. 2009); Marmolejo-Campos, 558 F.3d at 911-12. As
to this stage, we do owe some deference to the BIA’s exper-
tise in interpreting the ambiguous term “moral turpitude.”
Therefore, if the BIA’s decision under review is precedential,
or is an unpublished order relying on a prior precedential
opinion, we accord that determination Chevron deference. See
Marmolejo-Campos, 558 F.3d at 911; see also Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843-45 (1984). If, on the other hand, the decision is unpub-
lished and does not rely on a precedential opinion, we apply
Skidmore deference, meaning that we defer to the BIA’s
determination “only to the extent that it has power to per-
suade.” Saavedra-Figueroa v. Holder, 625 F.3d 621, 625 (9th
Cir. 2010); see also Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944); Marmolejo-Campos, 558 F.3d at 909. The deci-
sion here falls into the latter category, so we apply Skidmore
deference at the second step of the CIMT analysis. Because
we conclude that the BIA’s reasoning is unpersuasive, we do
not defer to it, and instead make our own inquiry.
HERNANDEZ-CRUZ v. HOLDER 9129
A.
We begin by first identifying the elements of Hernandez-
Cruz’s crimes of conviction. As already mentioned, a convic-
tion under California Penal Code § 459 requires proof of three
essential elements; in Hernandez-Cruz’s case, we know from
the record of conviction that he was convicted of that portion
of the statute that criminalizes (1) entering (2) a commercial
building (3) with the intent to commit larceny or any felony.
See Cal. Penal Code § 459; Davis, 958 P.2d at 1085.
[12] In holding that Hernandez-Cruz was convicted of two
CIMTs, the BIA stated that “both of [Hernandez-Cruz’s] bur-
glary convictions resulted from pleas in which he stipulated,
through counsel, that he had entered buildings with the intent
to commit larceny, a CIMT in the Ninth Circuit.” In support
of that proposition, the BIA’s decision cited Cuevas-Gaspar
v. Gonzales, 430 F.3d 1013, 1020 (9th Cir. 2005). In fact,
Cuevas-Gaspar considered a conviction under Washington’s
residential burglary statute, which varies substantially from
California’s burglary statute here at issue. See id. at 1019. The
Washington statute, for example, applies only to “a dwelling
other than a vehicle,” and requires that the defendant “enter[ ]
or remain[ ] unlawfully.” Id. (quoting Wash. Rev. Code
§ 9A.52.025(1)). In holding that a crime with those elements
was a CIMT, Cuevas-Gaspar was not addressing an offense
involving lawful entry into a commercial building open to the
public at large.
[13] The BIA’s brief analysis makes it impossible to be
certain exactly what it meant, but it is apparent that the BIA
either misapprehended the elements of the California burglary
offense or read the holding of Cuevas-Gaspar as much
broader than it actually was. Either way, the BIA’s reasoning
is decidedly not persuasive, and so we do not defer to it under
Skidmore. As the BIA erred at step one, we owe its CIMT
analysis at step two no deference. See Uppal, 605 F.3d at 715
(“Because the BIA failed to identify the elements of [the stat-
9130 HERNANDEZ-CRUZ v. HOLDER
ute of conviction] correctly, its CIMT analysis, in which it
compares the elements it has identified to the generic defini-
tion of moral turpitude, is misdirected and so merits no defer-
ence from this Court.”); Morales-Garcia, 567 F.3d at 1066
n.4 (same).
B.
[14] We next must compare the elements that Hernandez-
Cruz necessarily admitted—entering a commercial building
with the intent to commit larceny or any felony—“to the
generic definition of a crime involving moral turpitude and
decide whether they meet the definition.” Uppal, 605 F.3d at
714; see also Fregozo, 576 F.3d at 1034 (“The second inquiry
requires . . . defining a particular removable offense and
applying that definition to a petitioner’s state conviction.”). In
doing so, we keep in mind that “[w]hether a crime involves
moral turpitude ‘is determined by the statutory definition or
by the nature of the crime [and] not by the specific conduct
that resulted in the conviction.’ ” Navarro-Lopez v. Gonzales,
503 F.3d 1063, 1070 (9th Cir. 2007) (en banc) (citation omit-
ted, last alteration in original). In other words,
“[c]ounterfactual and counterintuitive though it often appears
to be, we do not consider the particular facts of the convic-
tions.” Tijani v. Holder, 628 F.3d 1071, 1075 (9th Cir. 2010),
cert. denied, 131 S. Ct. 2160 (2011).19
19
After the BIA entered its order in this case, the Attorney General
issued In re Silva-Trevino, 24 I. & N. Dec. 687 (BIA 2008), which pur-
ports to permit the BIA to look beyond the elements of the crime of con-
viction “to resolve accurately the moral turpitude question.” Id. at 704.
Because the BIA did not rely on Silva-Trevino in this case, we cannot con-
sider whether Silva-Trevino can be reconciled with our precedent. See
Marmolejo-Campos, 558 F.3d at 907 n.6 (“As th[e] question is not
squarely before us, we reserve judgment as to the validity of that portion
of our prior case law which suggests review should be more confined
[than that permitted by Silva-Trevino].”); see also Guardado-Garcia v.
Holder, 615 F.3d 900, 902 (8th Cir. 2010) (“[T]o the extent Silva-Trevino
is inconsistent, we adhere to circuit law.”); Jean-Louis v. Att’y Gen., 582
HERNANDEZ-CRUZ v. HOLDER 9131
There are a few established CIMTs that have elements sim-
ilar to those Hernandez-Cruz admitted, but none are a match.
For example, had Hernandez-Cruz been convicted of a crime
requiring proof that he had “unlawfully enter[ed] a residence
with intent to commit theft or larceny therein,” such a convic-
tion would be a CIMT. Cuevas-Gaspar, 430 F.3d at 1020(emphases added). As mentioned, however, the elements of
Hernandez-Cruz’s convictions did not involve a residence and
did not require the entry to be unlawful.
Similarly, had Hernandez-Cruz been convicted of a generic
theft offense—the “taking of property or an exercise of con-
trol over property without consent with the criminal intent to
deprive the owner of rights and benefits of ownership,”
Arteaga, 511 F.3d at 947 (internal quotation marks omit-
ted)—that, too, likely would be a CIMT. See United States v.
Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999); In re
Jurado Delgado, 24 I. & N. Dec. 29, 33-34 (BIA 2006). But
as the BIA itself noted in this case, § 459 does not have as an
element the taking of property, and therefore cannot be a
generic theft offense.
Finally, were Hernandez-Cruz’s convictions for generic
attempted theft offenses, we would likely conclude that they
were for CIMTs. See Barragan-Lopez v. Mukasey, 508 F.3d
899, 903 (9th Cir. 2007) (“We have previously looked to
underlying crimes in determining whether convictions for
F.3d 462, 470 (3d Cir. 2009) (rejecting “Silva-Trevino’s novel approach”
in favor of “the modified categorical approach that we have historically
applied”). Although it mentions Silva-Trevino, the Government neither
briefed whether we should follow Silva-Trevino, despite its conflict with
our prior case law, nor argued that we should remand for the BIA to con-
sider Hernandez-Cruz’s convictions under Silva-Trevino in the first
instance. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (hold-
ing that an argument not addressed in an answering brief is waived). For
all these reasons, we decide the case on the basis of the categorical and
modified categorical approaches, which the BIA used in this case.
9132 HERNANDEZ-CRUZ v. HOLDER
inchoate offenses constitute crimes involving moral turpi-
tude.” (citations omitted)); In re Khanh Hoang Vo, 25 I. & N.
Dec. 426, 429 (BIA 2011) (“[W]here the substantive offense
underlying an alien’s conviction for an attempt is a crime
involving moral turpitude, the alien is considered to have been
convicted of a crime involving moral turpitude.”). But as we
have already determined, Hernandez-Cruz’s convictions do
not qualify as generic attempted theft offenses.20
As to the other possible bases for holding that the § 459
offenses were CIMTs, the BIA did not hold, nor does the gov-
ernment here argue, that § 459 criminalizes “fraudulent” con-
duct. See Tijani, 628 F.3d at 1075-76; Navarro-Lopez, 503
F.3d at 1076 (Reinhardt, J., concurring for the majority). Even
if we could consider the argument, however, it would fail.
“When we analyze a statute to determine whether the conduct
it criminalizes is fraudulent, and thus whether the offense
qualifies as a crime of moral turpitude, we consider whether
the statute meets either of two conditions.” Navarro-Lopez,
503 F.3d at 1076 (Reinhardt, J., concurring for the majority).
The first condition is that “intentional fraud is an element of
the offense,” id., which plainly is not the case here. See id.;
see also Blanco v. Mukasey, 518 F.3d 714, 719-20 (9th Cir.
2008); Latu v. Mukasey, 547 F.3d 1070, 1074-75 (9th Cir.
2008).
The second condition that could qualify an offense as a
fraud-based CIMT is if the crime is “inherently fraudulent,”
meaning that the statute of conviction requires “knowingly
20
A generic attempted theft offense for CIMT purposes is defined
slightly differently than in the aggravated felony context. Whereas the lat-
ter, as we noted earlier, requires “the criminal intent to deprive the owner
of rights and benefits of ownership, even if such deprivation is less than
total or permanent,” Carrillo-Jaime, 572 F.3d at 750 (citation and quota-
tion marks omitted), “a permanent taking [must be] intended” for a con-
viction to qualify as a CIMT. Castillo-Cruz v. Holder, 581 F.3d 1154,
1160 n.8 (9th Cir. 2009) (citation, quotation marks, and emphasis omit-
ted). The distinction makes no difference here.
HERNANDEZ-CRUZ v. HOLDER 9133
false representations made in order to gain something of
value.” Navarro-Lopez, 503 F.3d at 1076 (Reinhardt, J., con-
curring for the majority). That condition is also not met here,
as the statute of conviction required only that Hernandez-Cruz
walk into a commercial building with the intent to commit lar-
ceny. It did not require him to make any representations at all,
much less false representations on which he intended others
to rely to his pecuniary benefit. See Blanco, 518 F.3d at 719(“Fraud . . . does not equate with mere dishonesty, because
fraud requires an attempt to induce another to act to his or her
detriment. One can act dishonestly without seeking to induce
reliance. Our cases have therefore recognized fraudulent
intent only when the individual employs false statements to
obtain something tangible.” (citations omitted)).
Nor is § 459 categorically a CIMT on the ground that it
punishes conduct that is “per se morally reprehensible,” Mat-
ter of L—V—C—, 22 I. & N. Dec. 594, 603 (BIA 1999); or
that is “base, vile, or depraved.” Navarro-Lopez, 503 F.3d at
1074 (Reinhardt, J., concurring for the majority). To hold oth-
erwise would mean that someone who did what Hernandez-
Cruz admitted doing—walking into a commercial building
with the intent to commit larceny—but then changed his mind
and walked out without ever committing any crime, would be
guilty of a CIMT. As previously discussed, society is not
harmed, but benefitted by encouraging moral reasoning about
whether to commit a crime. To harbor an inchoate intent to
commit a crime, never acted upon, simply does not “shock
society’s conscience.” Id. If it did, the phrase “moral turpi-
tude” would be devoid of all meaning.
[15] In sum, admitting only the elements that Hernandez-
Cruz admitted cannot be a CIMT, as they do not match the
elements of any generic crime involving moral turpitude, see
Uppal, 605 F.3d at 714; qualify as fraudulent conduct, see
Blanco, 518 F.3d at 719-20; or otherwise constitute acts that
are per se morally reprehensible, see Matter of L—V—C—, 22
I. & N. Dec. at 603. Consequently, Hernandez-Cruz’s crimes
9134 HERNANDEZ-CRUZ v. HOLDER
of conviction are not CIMTs, and he is not removable under
8 U.S.C. § 1227(a)(2)(A)(ii) by reason of their commission.
The BIA’s holding to the contrary, premised either on the
mistaken belief that Hernandez-Cruz was convicted of generic
burglary or the mistaken belief that this court has held the
California commercial burglary offense to be a CIMT, was in
error.
III.
Before concluding, we address what appears to be the Gov-
ernment’s fallback position: Even if the elements of the
offenses to which Hernandez-Cruz pleaded guilty do not, by
themselves, qualify his crimes as either aggravated felonies or
CIMTs, we can look beyond the elements to examine the
underlying facts. That examination reveals that, as a factual
matter, Hernandez-Cruz was arrested after leaving grocery
stores with food and alcohol he had not paid for. The Govern-
ment argues that from these facts, we can hold that
Hernandez-Cruz took a “substantial step” toward a generic
attempted theft offense by walking out of the stores with carts
containing items he had not purchased, and therefore, com-
mitted a generic attempted theft offense. Similarly, the Gov-
ernment argues that the facts underlying Hernandez-Cruz’s
convictions demonstrate that he is removable for having twice
been convicted for conduct that amounts to generic theft,
which is a CIMT. See Castillo-Cruz, 581 F.3d at 1159. There
are, however, several reasons why the Government’s argu-
ment fails, which we discuss briefly.
First, the Government advances arguments that the BIA
never considered and on which the BIA’s decision does not
rely.21 But we can neither “accept appellate counsel’s post hoc
rationalizations for agency action” nor “supply a reasoned
21
The Government did not file a brief with the BIA when Hernandez-
Cruz appealed, choosing instead to file a one-page motion for summary
affirmance containing only boilerplate language.
HERNANDEZ-CRUZ v. HOLDER 9135
basis for the agency’s action that the agency itself has not
given.” Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477
F.3d 668, 688 (9th Cir. 2007) (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962), and Bow-
man Transp., Inc. v. Ark.—Best Freight Sys., Inc., 419 U.S.
281, 285-86 (1974) (quotation marks omitted)). Instead, our
review is limited to “[t]he grounds upon which . . . the record
discloses that [the agency’s] action was based.” SEC v. Chen-
ery Corp., 318 U.S. 80, 87 (1943); see also Azanor v. Ash-
croft, 364 F.3d 1013, 1021 (9th Cir. 2004) (“[W]e must
decide whether to grant or deny the petition for review based
on the Board’s reasoning rather than our own independent
analysis of the record.”); Andia v. Ashcroft, 359 F.3d 1181,
1184 (9th Cir. 2004) (per curiam) (“In reviewing the decision
of the BIA, we consider only the grounds relied upon by that
agency.”). Thus, we cannot deny a petition for review on a
ground that the BIA itself did not base its decision.
Second, the Government’s argument relies on an inquiry
that is beyond what is permitted under the modified categori-
cal approach, which is concerned only with the crime of
which the defendant was convicted, and not with his conduct.
See Shepard, 544 U.S. at 22 (prohibiting courts from examin-
ing the factual circumstances underlying the prior convictions
even where “the records of the prior convictions . . . are in
each instance free from any inconsistent, competing evidence
on the pivotal issue of fact separating generic from non-
generic [offense]”); Ngaeth, 545 F.3d at 801. Although
Hernandez-Cruz did stipulate that the police reports provided
a factual basis for his guilty pleas, that stipulation only per-
mits us to examine the police reports to determine the precise
crime that he committed—i.e., that it was a commercial build-
ing, and not a dwelling (or some other structure listed in the
statute) that he admitted entering. As the BIA recognized in
reversing the IJ upon Hernandez-Cruz’s first appeal, just
because the defendant stipulated that a police report (or some
other document) contains the factual basis for his plea does
not change the focus of the modified categorical approach,
9136 HERNANDEZ-CRUZ v. HOLDER
which remains on the crime the defendant was convicted of
committing, not his underlying conduct. See, e.g., Parrilla v.
Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005) (“In light of
[the defendant’s] incorporation of the [police report] in his
guilty plea, relying upon the [police report] to establish the
elements of the crime to which [the defendant] pled guilty
does not undermine the purposes of our limited modified cate-
gorical inquiry.” (emphasis added)); see also United States v.
Lewis, 405 F.3d 511, 515 (7th Cir. 2005) (“The list in Shep-
ard is designed to identify documents that illuminate what
crime the defendant committed . . . . What matters is the fact
of conviction, rather than the facts behind the conviction.”).
Third and finally, the Government’s argument, if accepted,
would effectively rob Hernandez-Cruz of a benefit of the bar-
gain that he struck with the state of California. Recall that,
with regard to both of the criminal episodes in question,
Hernandez-Cruz was charged in criminal complaints that con-
tained two counts: the first counts charged burglary under
§ 459, and the second counts were for petty theft under
§§ 484(a) and 666. If it meets the generic definition of theft
under the modified categorical approach, a conviction under
§ 484(a), California’s theft statute, can qualify as both an
aggravated felony and a CIMT. See Carrillo-Jaime, 572 F.3d
at 751-52 (aggravated felony); Castillo-Cruz, 581 F.3d at
1160 (CIMT); see generally Corona-Sanchez, 291 F.3d at
1208.
But Hernandez-Cruz did not plead guilty to the theft
charges, because they were dismissed as part of plea bargains.
Those bargains provided benefits to both parties. The state
secured convictions on the charges that are punished more
harshly under state law without incurring the expense and
hassle of a trial.22 Hernandez-Cruz, for his part, agreed to
22
The theft offense that was dismissed in each of the two prosecutions
at issue in this case was punishable by no more than a year in jail, see Cal.
Penal Code §§ 490 & 666, whereas Hernandez-Cruz was sentenced to 16
months for the burglary offenses.
HERNANDEZ-CRUZ v. HOLDER 9137
plead guilty to a charge that, although more serious, had a
smaller chance of causing adverse immigration consequences.
See Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (“We
. . . have previously recognized that ‘[p]reserving the client’s
right to remain in the United States may be more important
to the client than any potential jail sentence.’ ” (quoting INS
v. St. Cyr, 533 U.S. 289, 323 (2001) (second alteration in
original)); St. Cyr, 533 U.S. at 322 (“There can be little doubt
that, as a general matter, alien defendants considering whether
to enter into a plea agreement are acutely aware of the immi-
gration consequences of their convictions.”).
The Government asks us to ignore the deal made by
Hernandez-Cruz and the state, and order him removed on the
basis of unconvicted conduct. The Supreme Court contem-
plated this very scenario in Taylor, and forbade us from disre-
garding the offense to which the defendant actually pleaded
guilty in favor of the dismissed charge. See Taylor, 495 U.S.
at 601-02 (“Even if the Government were able to prove [facts
constituting generic burglary], if a guilty plea to a lesser, non-
burglary offense was the result of a plea bargain, it would
seem unfair to impose a sentence enhancement as if the defen-
dant had pleaded guilty to burglary.”). Not only would it be
unfair to the defendant, but it would also weaken the incen-
tives for defendants to accept plea bargains in the first place,
which could have serious consequences for trial courts, espe-
cially in the state system.
Moreover, the Government’s argument, if accepted, would
make a mockery of the affirmative obligation that criminal
defense attorneys have to advise their non-citizen clients of
the potential immigration consequences of accepting a plea
bargain (and of pleading guilty more generally). See Padilla,
130 S. Ct. at 1486. As explained in Padilla:
[I]nformed consideration of possible deportation can
only benefit both the State and noncitizen defendants
during the plea-bargaining process. By bringing
9138 HERNANDEZ-CRUZ v. HOLDER
deportation consequences into this process, the
defense and prosecution may well be able to reach
agreements that better satisfy the interests of both
parties. As in this case, a criminal episode may pro-
vide the basis for multiple charges, of which only a
subset mandate deportation following conviction.
Counsel . . . may be able to plea bargain creatively
with the prosecutor in order to craft a conviction and
sentence that reduce the likelihood of deportation, as
by avoiding a conviction for an offense that automat-
ically triggers the removal consequence. At the same
time, the threat of deportation may provide the
defendant with a powerful incentive to plead guilty
to an offense that does not mandate that penalty in
exchange for a dismissal of a charge that does.
Id. See also United States v. Bonilla, 637 F.3d 980, 986 (9th
Cir. 2011) (holding that defense counsel’s inadequate legal
advice regarding the immigration consequences of a guilty
plea constituted a “fair and just” reason for withdrawing the
plea under Rule 11(d)(2)(B) of the Federal Rules of Criminal
Procedure). Were we free to disregard the plea bargain, then
there would be little reason to require criminal defense attor-
neys to inform their clients of the possibility of deportation;
no reason to “plea bargain creatively” to avoid that outcome;
and little incentive for non-citizens to ever plead guilty—far
better for them to go to trial and hope for an outright acquittal.
We decline the Government’s invitation to sacrifice the
vital role in our criminal justice system that the plea bargain-
ing process plays for the sake of more expeditious civil
removal proceedings.
IV.
The BIA erred in holding that Hernandez-Cruz’s convic-
tions qualified as generic attempted theft offenses, and
thereby, aggravated felonies under 8 U.S.C.
HERNANDEZ-CRUZ v. HOLDER 9139
§ 1227(a)(2)(A)(iii). It also erred in holding that the convic-
tions were for generic burglary, qualifying them as CIMTs
under 8 U.S.C. § 1227(a)(2)(A)(ii), or in reading our case law
as holding that California commercial burglary is a CIMT.
And the BIA has already held that the convictions do not
qualify as generic theft offenses. The Government has not
argued that Hernandez-Cruz’s convictions meet the definition
of some other generic crime qualifying them as either aggra-
vated felonies or CIMTs. As the BIA has ruled on the Gov-
ernment’s theories of removability, a remand “would be both
unnecessary and inappropriate.” Ruiz-Vidal v. Gonzales, 473
F.3d 1072, 1080 (9th Cir. 2007); see also Saavedra-Figueroa,
625 F.3d at 628-29; Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1132-35 (9th Cir. 2006) (en banc).
PETITION GRANTED; ORDER OF REMOVAL
VACATED.