Joya-Zelaya v. Holder

FILED
NOT FOR PUBLICATION SEP 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VANNY CARLO JOYA-ZELAYA, No. 04-72378
Petitioner - Appellant, Agency No. A36-331-098
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent - Appellee.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2008
Submission Vacated May 15, 2008
Resubmitted August 31, 2011
Pasadena, California
Before: SILVERMAN, BERZON, Circuit Judges, and BENITEZ,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Vanny Carlo Joya-Zelaya, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ affirmance of an immigration judge’s
order finding Joya-Zelaya removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as
an alien convicted of an aggravated felony. We have jurisdiction under 8 U.S.C. §
1252. We review de novo whether a conviction constitutes an aggravated felony.
Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000).
To determine if Joya-Zelaya’s conviction qualifies as a burglary conviction
under 8 U.S.C. § 1101(a)(43)(G), we use the approach outlined in Taylor v. United
States, 495 U.S. 575 (1990). Joya-Zelaya’s conviction does not categorically
support his removability for burglary under § 1101(a)(43)(G). California Penal
Code sections 459 and 460 are “categorically broader than generic burglary.”
United States v. Aguila-Montes de Oca, __ F.3d __, 2011 WL 3506442, at *25 (9th
Cir. Aug. 11, 2011).
When “we determine that the statute under which a defendant or alien was
previously convicted is categorically broader than the generic offense, we may
apply the modified categorical approach.” Aguila-Montes de Oca, 2011 WL
3506442, at *21. Joya-Zelaya’s plea to “wilfully and unlawfully enter[ing] a
commercial building occupied by Circuit City with the intent to commit larceny or
any felony in violation of [California] Penal Code section 460(b),” second degree
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burglary as defined by California Penal Code section 459, does not demonstrate
that his “conviction necessarily rested on facts satisfying the elements” of generic
burglary. Id. at *26.
For the foregoing reasons, Joya Zelaya’s conviction is not an aggravated
felony under § 1101(a)(43)(G).
PETITION FOR REVIEW GRANTED.
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