DAVID CHAVEZ V. LORETTA E. LYNCH, No. 11-73977 (9th Cir. 2015)

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The court issued a subsequent related opinion or order on January 21, 2016.

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 06 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DAVID CHAVEZ, No. 11-73977 Petitioner, Agency No. A070-911-147 v. MEMORANDUM* LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 3, 2015** Pasadena, California Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges. David Chavez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (BIA) decision dismissing his appeal from an Immigration Judge’s (IJ) order of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D), and we grant the petition. * 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). The BIA erred as a matter of law when it applied the modified categorical approach to conclude that Chavez’s conviction for petty theft with priors in violation of California Penal Code §§ 484(a) and 666 constituted an aggravated felony theft offense. See 8 U.S.C. §§ 1101(a)(43)(G); 1227(a)(2)(A)(iii). California law does not require the jury to unanimously agree as to which of the disjunctively worded forms of theft set forth in § 484(a) is the basis for the defendant’s conviction. See People v. Fenderson, 116 Cal. Rptr. 3d 17, 27 (Cal. Ct. App. 2010); People v. McLemore, 32 Cal. Rptr. 2d 687, 689 (Cal. Ct. App. 1994). As a result, the statute is not divisible and the modified categorical approach is inapplicable. See Descamps v. United States, 133 S. Ct. 2276, 2282, 2285 (2013); Rendon v. Holder, 764 F.3d 1077, 1081, 1086 (9th Cir. 2014). Because the modified categorical approach does not apply and “a petty theft conviction, under Cal. Penal Code §§ 484(a) and 666, is not a categorical match to the federal definition of a theft offense,” United States v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011), the BIA erred when it concluded that Chavez was removable as charged under 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). 2 Petition Granted. 3

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