Garcia v. Lynch, No. 11-73406 (9th Cir. 2015)
Annotate this CasePetitioner, a native and citizen of the Philippines, was incorrectly advised by an IJ that his prior conviction was for an aggravated felony and that he was therefore ineligible for relief from removal. Based on that advice, petitioner waived his appeal. The court concluded that petitioner's conviction for grand theft under California Penal Code 487(a) is not categorically an aggravated felony because section 487(a) is doubly overbroad because it permits a conviction for theft of labor, while the generic definition of theft does not. Further, section 487(a) incorporates the general definition of theft, which is found at California Penal Code 484(a). An individual may be convicted of theft under section 484(a), and therefore grand theft under section 487(a), even if the victim consented to transfer his property. The court concluded that petitioner's waiver of his right to appeal to the BIA was not considered and intelligent, and the BIA should have granted his motion for reconsideration. Accordingly, the court granted the petition and remanded for further proceedings.
Court Description: Immigration. The panel granted George Camacho Garcia’s petition for review from the Board of Immigration Appeals’ decision denying his motion for reconsideration for lack of jurisdiction on the ground that he validly waived appeal. The panel held that Garcia’s waiver of his right to appeal to the BIA was not considered and intelligent, because his decision was based upon an Immigration Judge’s incorrect advice that his prior conviction was an aggravated felony and that he was therefore ineligible for relief from removal. The panel held that Garcia’s conviction for grand theft, in violation of California Penal Code § 487(a), is not a categorical aggravated felony because it is doubly overbroad, where it permits a conviction for theft of labor, while the generic definition of theft does not, and it also permits a conviction for a consensual taking. Concurring, Judge Berzon agreed that Garcia’s appeal waiver was invalid because his conviction was not an aggravated felony, but wrote separately to explain that the BIA made a more fundamental error in concluding that it lacked jurisdiction. Judge Berzon wrote that the regulation governing finality upon which the BIA relied, 8 C.F.R. § 1003.39, is flatly inconsistent with the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(47)(B), which provides that a deportation order is final when the BIA affirms it or the GARCIA V. LYNCH 3 appeal period has expired, and further noted that the waiver of the right to appeal is not mentioned as triggering finality. Judge Berzon would hold that even if Garcia's waiver of appeal were otherwise valid it would not render his removal order final.
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