Lopez-Valencia v. Lynch, No. 12-73210 (9th Cir. 2015)
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Petitioner, a native and citizen of Mexico, appealed the BIA's decision finding that his California state petty theft conviction constituted an aggravated felony theft offense pursuant to 8 U.S.C. 1101(a)(43)(G). The court adhered to the methodology established by Descamps v. United States and its follow-on opinion in Rendon v. Holder, and concluded that a conviction under California’s theft statute is not an aggravated felony because it is not a “theft offense” as defined by section 1101(a)(43)(G). The court further stated that a conviction for “theft” in California is categorically not a “generic theft offense” because it is both “overbroad” and
“indivisible,” and thus not susceptible to the “modified categorical approach.” To the extent that United States v. Rivera, Carillo-Jaime v. Holder, and United States v. Corona-Sanchez suggested that a conviction for theft in California could qualify as a generic theft offense, the court concluded that those cases are “clearly irreconcilable” with Descamps. The court granted the petition for review and remanded for further proceedings.
Court Description: Immigration. The panel granted Roberto Lopez-Valencia‘s petition for review of the Board of Immigration Appeals’ decision finding that his California state petty theft conviction constituted an aggravated felony theft offense as defined by 8 U.S.C. § 1101(a)(43)(G). The panel held that a California theft conviction, including any offense for which the underlying substantive offense charged was a violation of California Penal Code § 484, is not a categorical theft offense. Applying the methodology established by Descamps v. United States, 133 S. Ct. 2276 (2013) and Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), the panel held that California’s theft statute is both overbroad and indivisible, and that it does not match a generic federal theft offense or a theft offense as defined in 8 U.S.C. § 1101(a)(43)(G). The panel emphasized that such a conviction may thus not be subjected to the modified categorical approach. The panel wrote that to the extent United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011), Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009), and United States v. Corona- Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), suggested that a California theft conviction could qualify as a generic theft offense, they are clearly irreconcilable with Descamps. LOPEZ-VALENCIA V. LYNCH 3
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