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Rendon v. Holder

United States Court of Appeals, Ninth Circuit

August 22, 2014

CARLOS ALBERTO RENDON, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, Pasadena, California: June 5, 2014.

Page 1078

[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-080-719.

SUMMARY[*]

Immigration

The panel granted Carlos Alberto Rendon's petition for review of the Board of Immigration Appeals' decision finding him statutorily ineligible for cancellation of removal based on his conviction for attempted second-degree burglary under California state law.

The panel held as an initial matter that California Penal Code § 459 is not a categorical match to the federal generic attempted theft offense because it punishes a broader range of conduct. The panel held that the BIA impermissibly applied the modified categorical approach to determine that Rendon's CPC § 459 conviction qualified as an attempted theft aggravated felony. The panel held that under Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), CPC § 459 is indivisible as a matter of law, and that in the language at issue: " with intent to commit grand or petit larceny or any felony," the use of the disjunctive " or" between " grand or petit larceny" and " any felony" did not render the statute divisible. The panel wrote that it necessarily follows from Richardson v. United States, 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), that the Supreme Court regards elements as circumstances upon which a jury must unanimously agree but regards means as circumstances on which the jury may disagree yet still convict. The panel held that determining whether a disjunctively worded statute is divisible or not requires looking to whether the state treats the parts of the statute on opposite sides of the " or" as alternative elements or alternative means. The panel held that the substantive crimes set forth in the language at issue are alternative means of satisfying the intent element of CPC § 459, and the statute is indivisible.

Brigit G. Alvarez (argued), Law Office of Brigit G. Alvarez, Los Angeles, California, for Petitioner.

Gary J. Newkirk (argued), Trial Attorney; Tony West, Assistant Attorney General; Francis W. Fraser, Senior Litigation Counsel; and Jacob A. Bashyrov, Trial Attorney, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges. Opinion by ...


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