Rendon v. Holder, No. 10-72239 (9th Cir. 2015)
Annotate this CaseIn its opinion filed August 22, 2014, a panel of the Ninth Circuit granted Petitioner’s petition for review from the Board of Immigration Appeals’ (BIA) decision finding him statutorily ineligible for cancellation of removal based on his conviction for attempted second-degree burglary under California state law. The panel held (1) the BIA impermissibly applied the modified categorical approach to determine that Rendon’s Cal. Penal Code 459 conviction qualified as an attempted theft aggravated felony; (2) under Descamps v. United States, section 459 is indivisible and its use of disjunctive language did not render it divisible; and (3) when determining whether a disjunctively worded statute is divisible requires looking to whether the state treats the parts of the statute on opposite sides of the “or” as alternative elements or alternative means. Here the panel denied a petition for panel rehearing and rejected a sua sponte en banc call. Dissenting from the denial for panel rehearing, Judge Graber wrote that when applying the modified categorical approach to a disjunctive statute, Descamps requires that the court must consult Shepard documents to determine whether the jury found or what the defendant pleaded to matches the federal definition of the relevant crime. Also dissenting, Judge Kozinski suggested an alternative reading of Descamps which would, when confronted with a disjunctively-phrased statute, look to Shepard documents for the limited purpose of determining the statute’s elements.
Court Description: Immigration. The panel filed an order denying a petition for panel rehearing and, on behalf of the court, rejecting a sua sponte en banc call. In its opinion filed August 22, 2014, the panel granted Carlos Alberto Rendon’s petition for review from the Board of Immigration Appeals’ decision finding him statutorily ineligible for cancellation of removal based on his conviction for attempted second-degree burglary, in violation of California Penal Code § 459. The panel held that under Descamps v. United States, 133 S. Ct. 2276 (2013), § 459 is indivisible and its use of disjunctive language did not render it divisible. The panel held that determining whether a disjunctively worded statute is divisible requires looking to whether the state treats the parts of the statute on opposite sides of the “or” as alternative elements or alternative means. Dissenting from the denial of rehearing en banc, Judge Graber, joined by Judges O’Scannlain, Gould, Tallman, Bybee, Callahan, Bea, and Ikuta, wrote that when applying the modified categorical approach to a disjunctive statute, Descamps holds that the court must consult the Shepard documents to determine whether what the jury found or what the defendant pleaded to matches the federal definition of the relevant crime. RENDON V. HOLDER 3 Dissenting from the denial of rehearing en banc, Judge Kozinski wrote to suggest an alternative reading of Descamps’s footnote 2. Judge Kozinski’s reading would, when confronted with a disjunctively-phrased statute, look to Shepard documents for the limited purpose of determining the statute’s elements. Judge Kozinski wrote that a court should first look to the documents to determine a crime’s elements, and on that basis decide whether the categorical or modified categorical approach is appropriate.
This opinion or order relates to an opinion or order originally issued on August 22, 2014.
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