Betancourt-Flores v. Holder

FILED
NOT FOR PUBLICATION NOV 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALICIA BETANCOURT-FLORES, No. 06-73846
Petitioner, Agency No. A011-825-887
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Alicia Betancourt-Flores, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review de novo questions of law, Renteria-Morales v. Mukasey, 551 F.3d
1076, 1080 (9th Cir. 2008), and we grant the petition for review.
The agency erred when it applied the modified categorical approach to
determine that Betancourt-Flores’s conviction for second degree burglary under
Cal. Penal Code § 459 constituted an aggravated felony “attempted theft” offense
under 8 U.S.C. § 1101(a)(43)(G) and (U), rendering her ineligible for relief from
removal. See Ngaeth v. Mukasey, 545 F.3d 796, 801 (9th Cir. 2008) (a conviction
under Cal. Penal Code § 459 constitutes an attempted theft offense under 8 U.S.C.
§ 1101(a)(43)(G) and (U) if the documents in the record of conviction establish
that it involved an intent to commit a generic theft offense “coupled with an overt
act constituting a substantial step towards the commission of the offense”);
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1101-04 (9th Cir. 2011) (entry into a
commercial building does not constitute a substantial step supporting a conviction
for attempted theft).
In addition, the agency found Betancourt-Flores removable due to her
convictions for second degree burglary and possession of a controlled substance
without the benefit of our intervening decisions in Hernandez-Cruz, 651 F.3d at
1105-09 (bare elements of California commercial burglary do not qualify as CIMT
as they do not match the elements of any generic CIMT, qualify as fraudulent
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conduct, or otherwise constitute acts that are per se morally reprehensible), and
Ruiz-Vidal v. Holder, 473 F.3d 1072, 1076 (9th Cir. 2007) (because California
drug schedules are broader than the federal Controlled Substance Act, record of
conviction must identify the controlled substance involved). On remand, the
agency should reconsider its findings of removability in light of our intervening
precedent.
We need not address Betancourt-Flores’s remaining contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
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