Jorge Cuevas-Moreno v. Eric Holder, Jr.

MEMORANDUM

Jorge Cuevas-Moreno challenges an order of the Board of Immigration Appeals affirming the Immigration Judge’s determination that he was convicted of an aggravated felony and is therefore ineligible for cancellation of removal. Cuevas-Mor-eno was convicted of a crime of domestic violence that renders him removable, but because he was only sentenced to 31 days, that crime is not an aggravated felony, which would bar his application for cancellation of removal. See 8 U.S.C. § 1101 (a)(43)(F) (crime of violence is an aggravated felony only if the term of imprisonment is at least one year).

In addition the record contains an abstract of judgment indicating that Cuevas-Moreno was also convicted of violating California Penal Code § 487(a), which criminalizes the taking of “money, labor, or real or personal property.” That statute is overbroad, which means that some convictions under the statute are aggravated felonies, but others are not. Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1039 (9th Cir.2011). The parties dispute whether, under the modified categorical approach, we may consider the criminal complaint that indicates Cuevas-Moreno was charged with stealing personal…