Ines Vasquez-Gonzalez v. Eric Holder, Jr. , 588 F. App'x 538 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INES SAUL VASQUEZ-GONZALEZ, No. 11-73775
Petitioner, Agency No. A090-152-894
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2014**
San Francisco, California
Before: CANBY, W. FLETCHER, and WATFORD, Circuit Judges.
Ines Vasquez-Gonzalez, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals affirming an Immigration
Judge’s decision ordering Vasquez-Gonzalez to be removed to Mexico.
Vasquez–Gonzalez conceded removability but contends that the BIA erred in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
determining that he was ineligible for cancellation of removal because his Nevada
state-law conviction for attempted grand larceny of a motor vehicle constituted an
aggravated felony under the Immigration Act. We have jurisdiction pursuant to 8
U.S.C. § 1252. We review de novo the legal question of whether an offense is an
aggravated felony under 8 U.S.C. § 1101(a). Flores-Lopez v. Holder, 685 F.3d
857, 861 (9th Cir. 2012). We deny the petition for review.
In 2007, Vasquez–Gonzalez, a lawful permanent resident of the United
States, was sentenced to 12 months in the Clark County Detention Center after he
pleaded guilty to attempted grand larceny of a motor vehicle under sections
193.330 and 205.228 of the Nevada Revised Statutes. The BIA determined that
attempted grand larceny “is categorically an aggravated felony attempt to commit a
theft offense under [the Immigration and Nationality] Act,” rendering
Vasquez–Gonzalez statutorily ineligible for cancellation of removal.
To determine whether a state conviction qualifies as an aggravated felony
under federal law, we apply the categorical test set forth by the Supreme Court in
Taylor v. United States, 495 U.S. 575 (1990), which requires “a categorical
comparison of the elements of the state statute of conviction to the generic
definition of a theft offense.” Verdugo–Gonzalez v. Holder, 581 F.3d 1059, 1060
(9th Cir. 2009). As used in this context, the term “aggravated felony” includes
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“theft offense[s] . . . for which the term of imprisonment [is] at least one year.” 8
U.S.C. § 1101(a)(43)(G). This Circuit has generically defined a theft offense 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 deprivation is less than total or permanent.” Carrillo-
Jaime v. Holder, 572 F.3d 747, 750 (9th Cir. 2009) (quoting United States v.
Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc)).
Vasquez–Gonzalez argues that a grand-larceny conviction under Nevada Revised
Statutes § 205.228 does not require that the defendant acted with an intent to
deprive and thus fails the categorical test. (He does not dispute that the crime of
attempt includes the element of intent to commit the attempted offense. See Nev.
Rev. Stat. § 193.330.)
Section 205.228 of the Nevada Revised Statutes provides that a “person who
intentionally steals, takes and carries away, drives away or otherwise removes a
motor vehicle owned by another person commits grand larceny of a motor
vehicle.” Nev. Rev. Stat. § 205.228. We read this statute as requiring proof that
the accused intentionally stole and took the motor vehicle; only the element
“carries away, drives away, or otherwise removes” may be proved in the
alternative. Moreover, the Nevada Supreme Court has consistently acknowledged
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that the specific intent to deprive an owner of his or her property is an element of a
theft offense. See Grant v. State, 24 P.3d 761, 766 (Nev. 2001) (citing Nevada’s
statutory definition for grand larceny and concluding that the prosecution had
adduced sufficient evidence to support the requisite finding of intent to
permanently deprive owner of property); Harvey v. State, 375 P.2d 225, 226 (Nev.
1962) (“Nevada law is settled that, to constitute larceny, there must exist in the
mind of the perpetrator, at the time of the taking, the specific intent to permanently
deprive the owner of his property.”); see also Foreshee v. Runnels, No.
CIVS03-1647, 2007 WL 2505578, at *7 (E.D. Cal. Aug. 31, 2007) (“The Nevada
Supreme Court has long held that larceny requires an intent to permanently deprive
the owner of his or her property.”). In applying the categorical approach, “we
consider not only the language of the state statute, but the interpretation of that
language in [state] judicial opinions.” Ortega-Mendez v. Gonzales, 450 F.3d 1010,
1016 (9th Cir. 2006). Contrary to Vasquez-Gonzalez’s contention, none of the
above authorities is undermined by the fact that the Nevada legislature, in enacting
a different statute defining theft in 1989, specified an element of intent to
permanently deprive the owner of property. The decisions cited above both before
and after that enactment include the requisite intent element as inherent in larceny
or stealing.
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Although Vasquez-Gonzalez does not raise the point, we note that Nevada
Revised Statutes § 205.228 also does not expressly require that the stealing and
taking be “without consent,” which is an element of generic theft. Here, too, the
element of lack of consent is inherent in the definition of larceny or stealing. We
have previously held that a showing that property is “stolen” is sufficient to
demonstrate a lack of the owner’s consent. Randhawa v. Ashcroft, 298 F.3d 1148,
1153–54 (9th Cir. 2002). Because § 205.228 requires proof of stealing, the
element of lack of consent is included and satisfied.
To support a contrary interpretation, Vasquez-Gonzalez would have to
demonstrate “a realistic probability, not a theoretical possibility, that the State
could apply its statute to conduct that falls outside the generic definition of a
crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). He has made no
showing that there is a realistic possibility that a person could be found guilty of
violating § 205.228 when he had stolen and taken the property with the owner’s
consent.
Accordingly, because a conviction under section 205.228 satisfies the
elements of intent and lack of consent of a generic theft offense and is otherwise no
broader than the generic theft offense, Vasquez–Gonzalez’s conviction
categorically qualifies as an aggravated felony under the INA. See Descamps v.
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United States, 133 S. Ct. 2276, 2283 (2013). Vasquez-Gonzalez’s petition for
review is DENIED.
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