Alibutod

MEMORANDUM *

Hector Molina Alibutod, a native and citizen of the Philippines, petitions for review of a Final Administrative Removal Order finding Alibutod removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 122T(a)(2)(A)(iii) as an alien convicted of an aggravated felony in the form of a theft offense as defined by INA § 101(a)(43)(G), 8 U.S.C. § 1101 (a)(43)(G). The removal ordered was issued to Alibutod pursuant to expedited removal proceedings under INA § 238(b), 8 U.S.C. § 1228 (b). We dismiss the petition for review for lack of jurisdiction.

Under 8 U.S.C. § 1252 (a)(2)(C), this Court lacks jurisdiction to review a final order of removal against an alien who is removable for having been convicted of an *425 aggravated felony. However, this Court retains jurisdiction to determine whether the jurisdictional bar applies. Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir.2002) . This Court reviews de novo the threshold issue whether a particular offense constitutes an aggravated felony. Park v. INS, 252 F.3d 1018, 1021 (9th Cir.2001). Because the parties are familiar with the facts, we will not recount them in detail except as necessary.

In United States v. Corona-Sanchez,…

concurring.

I concur in the disposition because the statute at issue in this case is nearly identical in structure to the statute at issue in Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir.2002). Both statutes criminalize mere possession of items known to have been acquired with criminal intent. 1 However, *427 the analysis and decision in Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir.2003), cause me to doubt the resolution of this case.

As the disposition notes, this Court has held that “theft offense” for the purposes of removal under 8 U.S.C. § 1101 (a)(43)(g) means “a taking 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.” United States v. Corona-Sanchez, 291 F.3d 1201, 1204 (9th Cir.2002) (en banc). California Penal Code Section 484e(b), under which Alibutod was convicted, requires the offender to “[have] reason to know” that access cards were taken or retained under circumstances constituting a violation of Section 484e(a), (c), or (d) but does not explicitly require the possessor of the access cards to posses them…