Renteria-Morales

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge TALLMAN

The two petitions for review consolidated in this opinion 1 raise the question whether a conviction for failure to appear in court in violation of 18 U.S.C. § 3146 2 is *952 categorically an aggravated felony as defined by 8 U.S.C. § 1101 (a)(43)(S) 3 or 8 U.S.C. § 1101 (a)(43)(T). 4 Applying the categorical approach prescribed by Taylor v. United States, 495 U.S. 575, 600-02 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), we conclude that a violation of § 3146 is not categorically an aggravated felony under either provision. Applying the modified categorical approach to the two petitions before us, we determine that the prior conviction of one petitioner qualifies as an aggravated felony and the prior conviction of the other petitioner does not.

I

Irma Renteria Morales (Renteria) and Maria Jesus Rivera de Alvarado (Rivera), both natives and citizens of Mexico, petition for review of the affirmance by the Board of Immigration Appeals (BIA) of a final order of removal.

A

Renteria became a lawful permanent resident of the United States in 1990. On January 13, 1998, Renteria pleaded guilty to violation…

concurring in part and dissenting in part:

I respectfully dissent from the majority’s erroneous conclusion that, under the modified categorical approach, Irma Renteria-Morales’s (“Renteria”) conviction for bail jumping does not meet the elements of an aggravated felony as set forth in 8 U.S.C. § 1101 (a)(43)(T). Because the court’s holding is based on a fundamental misunderstanding of federal criminal procedure regarding mandatory conditions imposed on release from custody, and because the charging language of the bail jumping information compels the opposite conclusion, I would deny her petition for review. I concur in all other parts of the majority’s opinion.

The criminal information charging Renteria with bail jumping states in relevant part,

This language is susceptible to only one reasonable interpretation: Renteria was charged with the felony of possession of marijuana with the intent to distribute, she was released under 18 U.S.C. § 3142 subject to various terms of release under the statute, and she was ordered by a judge to appear in court to answer or dispose of that charge, but she willfully failed to do so. That conduct renders her ineligible for relief from…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRMA RENTERIA-MORALES, 

Petitioner, No. 04-74742 v.  Agency No.

A92-202-968

MICHAEL B. MUKASEY, Attorney General, Respondent. 

MARIA JESUS RIVERA DE ALVARADO, 

Petitioner, No. 06-73283 v.  Agency No.

A17-970-844

MICHAEL B. MUKASEY, Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 9, 2007—San Francisco, California

Filed July 10, 2008

Before: Sidney R. Thomas, Richard C. Tallman, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Tallman COUNSEL

Irma Renteria-Morales v. Mukasey, 04-74742:

Martin R. Guajardo (brief) and Marty Robles (argued), Law Office of Martin R. Guajardo, San Francisco, California, for the petitioner.

Marshall Tamor Golding (brief) and Ann Carroll Varnon (argued), United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

Maria Jesus Rivera De Alvarado v. Mukasey, 06-73283:

Carol Dvorkin,…