Francisco Acevedo De Leon v. Eric Holder, Jr.

MEMORANDUM

Francisco Acevedo de Leon (“De Leon”) petitions for review of a December 28, 2010 decision rendered by the Board of Immigration Appeals (“BIA”). The BIA affirmed an immigration judge’s decision finding De Leon ineligible for cancellation of removal, pursuant to 8 U.S.C. § 1229b, because he was convicted of an aggravated felony.

We use the modified categorical approach to determine whether a petty theft with priors conviction under CaLPenal Code §§ 484(a) and 666 constitutes an aggravated felony under 8 U.S.C. § 1101 (a)(43)(G). See United States v. Rivera, 658 F.3d 1073, 1076-77 (9th Cir.2011). Under that approach, De Leon contends that the record evidence (the single-count felony complaint alleging that he “did unlawfully ... steal take and carry away the personal property of Wal Mart,” plus the abstract of judgment recording his guilty plea to that count) does not establish that his 2009 conviction is an aggravated félony, because the abstract of judgment does not expressly indicate that De Leon pleaded guilty “as charged in the complaint.” Cf. Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir.2009) (“[T]o iden tify a conviction as the generic offense through the…