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Ramirez-Villalpando v. Holder

April 9, 2010

JUAN C. RAMIREZ-VILLALPANDO, AKA JUAN CARLOS RAMIREZ, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A012-620-554.

The opinion of the court was delivered by: Clifton, Circuit Judge

FOR PUBLICATION

Argued and Submitted January 11, 2010 -- San Francisco, California

Before: J. Clifford Wallace, Procter Hug, Jr. and Richard R. Clifton, Circuit Judges.

OPINION

Juan C. Ramirez-Villalpando petitions for review of a decision by the Board of Immigration Appeals affirming an order of removal based on his conviction for an aggravated felony. The BIA held that Ramirez-Villalpando's conviction for grand theft under California Penal Code § 487(a) qualified as an aggravated felony under the modified categorical approach. We agree and deny the petition for review.

I. Background

Ramirez-Villalpando is a citizen of Mexico. He was admitted to the United States as a lawful permanent resident in 1961. In November 1986, Ramirez-Villalpando was placed in immigration proceedings, and he was later found removable. At that time, however, he was granted relief under former INA § 212(c). Aliens who have been granted relief under § 212(c) are ineligible for subsequent cancellation of removal.

8 U.S.C. § 1229b(c)(6).

In 2006, Ramirez-Villalpando was arrested and charged by felony complaint with: (1) grand theft of personal property in violation of California Penal Code § 487(a) for unlawfully taking tires and rims, and (2) receiving stolen property in violation of California Penal Code § 496(a) for obtaining tires and rims. Ramirez-Villalpando pled guilty to both charges on November 21, 2006. The abstract of judgment, filed on December 1, 2006, stated that Ramirez-Villalpando was convicted of "GRAND THEFT OF PERS PROPER" under § 487(a) and "RECEIVING STOLEN PROPERTY" under § 496(a) and that he was sentenced to a 16-month term of imprisonment on each count, to run concurrently.

The federal government issued a Notice to Appear to Ramirez-Villalpando seeking to remove him from the United States on the ground that he had been convicted of an aggravated felony as defined in the Immigration and Naturalization Act. See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); 8 U.S.C. § 1101(a)(43)(G) (defining "aggravated felony" to include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year."). The Notice to Appear cited Ramirez-Villalpando's conviction for grand theft of personal property in violation of California Penal Code § 487(a) described above.

During the removal proceedings before the Immigration Judge (IJ), the government submitted three conviction documents into the record: the abstract of judgment, the felony complaint, and a probation officer's report. The IJ held that "grand theft of personal property is a crime of theft within the ambit of Section 101(a)(43)(G) of the Act and therefore is an aggravated felony as the sentence is more than 1 year." The IJ thus ordered Ramirez-Villalpando removed to Mexico.

Ramirez-Villalpando appealed to the BIA, attaching to his Notice of Appeal the transcript of his California plea hearing. The BIA upheld the IJ's conclusion that Ramirez-Villalpando had been convicted of an aggravated felony and denied his appeal. The BIA noted that, under our court's precedent, a conviction under California Penal Code § 487(a) is not categorically an aggravated felony because § 487(a) encompasses the crime of theft of labor in addition to theft of tangible property. Turning to the modified categorical approach, the BIA concluded that "the conviction record reflects that the respondent pled guilty to a charge of grand theft of particular items of personal property, not labor." The BIA went on to note in particular that the transcript of the plea colloquy Ramirez-Villalpando ...


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