David Chavez v. Loretta E. Lynch

Good Law
611 F. App'x 475
United States Court of Appeals for the Ninth CircuitAugust 6, 201511-73977California279 words

Opinion

Opinion

MEMORANDUM

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.

The BIA erred as a matter of law when it applied the modified categorical ap proach 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, 188 Cal.App.4th 625 , 116 Cal.Rptr.3d 17, 27 (2010); People v. McLemore, 27 Cal.App.4th 601 , 32 Cal.Rptr.2d 687, 689 (1994). As a result, the statute is not divisible and the modified categorical approach is inapplicable. See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2282, 2285 , 186 L.Ed.2d 438 (2013); Rendon v. Holder, 764 F.3d 1077, 1081, 1086 (9th Cir.2014).

Because the…

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