FILED

NOT FOR PUBLICATION MAY 04 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

JOSE MORENO-ALVAREZ, No. 07-73642

Petitioner, Agency No. A043-954-304

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued April 15, 2009 Submitted April 30, 2010** Pasadena, California

Before: FERNANDEZ, SILVERMAN and CALLAHAN, Circuit Judges.

Jose Moreno-Alvarez ('Petitioner') petitions for review of an order of the

Board of Immigration Appeals ('BIA') affirming the immigration judge's order,

which found Petitioner removable pursuant to 8 U.S.C. y 1227(a)(2)(A)(iii) and

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). foreclosed possible relief in the form of cancellation of removal based on his prior

commission of an aggravated felony. We grant the petition.1

We employ the categorical and modified categorical approaches to

determine whether Petitioner's conviction for theft under California Vehicle Code

y 10851(a) constituted an aggravated felony under 8 U.S.C. y 1101(a)(43)(G). See

Taylor v. United States, 495 U.S. 575, 602 (9th Cir. 1990); see also United States

v. Snellenberger, 545 F.3d 699, 701 (9th Cir. 2008) (en banc) (per curiam). As

defined in 8 U.S.C. y 1101(a)(43)(G), the term 'aggravated felony' means 'a theft

offense (including receipt of stolen property) or burglary offense for which the

term of imprisonment at least one year.' In turn, a 'theft offense' is ''a taµing of

property or an exercise of control over property without consent with the criminal

intent to deprive the owner of rights and benefits of ownership, even if such

deprivation is less than total or permanent.'' Penuliar v. Muµasey, 528 F.3d 603,

611 (9th Cir. 2008) ('Penuliar II') (quoting United States v. Vidal, 504 F.3d 1072,

1077 (9th Cir. 2007) (en banc)). Under y 10851(a), a person is guilty of unlawful

driving or taµing of a vehicle if he or she:

drives or taµes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily

1 Because the parties are familiar with the facts of this case, we repeat them here only as necessary to the disposition of this case.

2 deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taµing or stealing . . . .

We have previously held that 'a conviction under y 10851(a) does not

qualify as a 'theft offense' under the categorical approach' because y 10851(a)

'extends liability to accessories after the fact for post-offense conduct.' Penuliar

II, 528 F.3d at 611-12 (citing Vidal, 504 F.3d at 1077). Here, the government

appropriately concedes that y 10851(a) is categorically overbroad and argues only

that we may deny relief based on application of the modified categorical approach.

The government argues that we may consider the felony complaint and the

abstract of judgment together and conclude that Moreno 'was convicted of

violating section 10851(a) in a manner that constitutes a generic theft offense, even

after Vidal, as a principal rather than an accessory after the fact.' Even were we to

agree with the government and our dissenting colleague that we may consider an

abstract of judgment when conducting a modified categorical approach analysis,

because an abstract judgment is aµin to a minute order, see Snellenberger, 548 F.3d

at 701-02, the record here fails to establish that Petitioner's conviction under

y 10851(a) was as a principal, rather than as an accessory after the fact.

3 As in Penuliar II, the felony complaint contains the generic statutory

language from y10851(a). Moreover, the abstract of judgment does not establish

that Petitioner was convicted as a principal under y 10851(a). The abstract of

judgment does not incorporate the felony complaint by reference, which we stated

in Vidal is required when those two documents constitute the entire record of

conviction: 'In order to identify a conviction as the generic offense through the

modified categorical approach, when the record of conviction comprises only the

indictment and the judgment, the judgment must contain 'the critical phrase 'as

charged in the Information.'' 504 F.3d at 1087. Here, the abstract of

judgment--which reads 'TAKE VEHICLE W/O OWNER'S CONSENT'--does

not clearly indicate that Petitioner specifically admitted to acting as a principal in

his guilty plea.

The record here is virtually identical to the record in Penuliar II, and thus we

cannot find that it unequivocally establishes that Petitioner was convicted of a theft

offense under 8 U.S.C. y 1101(a)(43)(G).

Accordingly, the petition for review is hereby GRANTED.

4

FILED

Moreno-Alvarez v. Holder, 07-73642 MAY 04 2010

MOLLY C. DWYER, CLERK

SILVERMAN, Circuit Judge, dissenting: U.S . CO UR T OF AP PE A LS

When the criminal complaint and abstract of judgment in this case are

considered together, it is apparent that petitioner, pursuant to a guilty plea, was

convicted in California state court of taµing a vehicle without the owner's consent

and sentenced to two years imprisonment. He was thus convicted of a 'theft

offense' for which the term of imprisonment was at least one year, maµing him an

'aggravated felon' as defined by 8 U.S.C. y 1101(43)(G).

To whatever extent Penuliar v. Muµsaey, 528 F.3d 603 (9th Cir. 2008),

decided on June 10, 2008, held that the abstract of judgment in that case was

insufficient to establish what offense Penuliar pled guilty to, that case was

superseded four months later by the en banc opinion in United States v.

Snellenberger, 548 F.3d 699 (9th Cir. 2008), decided on October 28, 2008.

Snellenberger holds that when it comes to discerning what a defendant had been

convicted of, a clerµ's minute entry is just as reliable as the other court documents

favorably mentioned, by way of illustration, in Shepard v. United States, 544 U.S.

13 (2005). In my opinion, an abstract of judgment prepared by court personnel in

the ordinary course of judicial business, bearing the court seal, the clerµ's filing -2-

stamp and the deputy clerµ's signature, on an official court form, is equally

reliable. In the absence of any evidence to doubt the document's authenticity or

accuracy, it seems to me that the abstract of judgment in this case may be relied

upon to establish that petitioner did, indeed, commit the crime of 'taµe vehicle w/o

owner's consent' and was sentenced to two years in state prison. The abstract

specifically references the Complaint by case number and states that the defendant

was convicted on January 24, 2006 of count 1 thereof, in which he was charged

with driving or taµing a 1990 Toyota picµ-up without the consent of the owner, J.

Gutierrez. There is no reason in the record to believe that petitioner was convicted

of anything other than 'taµing' or 'driving' the vehicle. Either way, he would be a

principal in the offense.

I would deny the petition.