Alex Knight v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 27 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX ANTON KNIGHT, AKA Alex No. 16-73797
Knight,
Agency No. A077-303-412
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 14, 2019
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,**
District Judge.
Alex Anton Knight, a native and citizen of Belize, petitions for review of his
order of removal. He contends that his conviction under California Vehicle Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
section 10851(a), Unlawful Taking or Driving of a Vehicle, does not qualify as an
aggravated theft offense supporting his removal.
We have held that Section 10851(a) is not a categorical match for an
aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G) because Section
10851(a) criminalizes accessories after the fact, not just principal actors. See
United States v. Vidal, 504 F.3d 1072, 1086 (9th Cir. 2007) (en banc), abrogated
on other grounds as recognized in Cardozo-Arias v. Holder, 495 F. App’x 790,
792 n.1 (9th Cir. 2012). We have also held that the statute is divisible in its
treatment of accessories after the fact. See Duenas-Alvarez v. Holder, 733 F.3d
812, 815 (9th Cir. 2013). Petitioner asks us to look to the record of conviction
under a modified categorical analysis to determine whether the record
unequivocally shows that he was convicted as a principal actor.
In arguing that the record is ambiguous on this point, Petitioner relies on our
decision in United States v. Arriaga-Pinon, 852 F.3d 1195 (9th Cir. 2017). There,
because the defendant had pled to driving or taking the car and there was no
factual basis for the plea, we held that there was uncertainty in the record as to
whether he was convicted as a principal or an accessory. Id. at 1200. Here,
however, there is no doubt that Petitioner was convicted as a principal. Petitioner
pled to an unambiguous charge that he took and drove the vehicle at issue without
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the owner’s consent, and Petitioner provided a factual basis for his plea. Because
his record of conviction shows unambiguously that he was convicted of the
generically defined crime of aggravated theft, petitioner’s conviction provides a
proper basis for his removal.
Petition DENIED.
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