Betancourt-Flores v. Holder

459 F. App'x 598

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2011
• Docket: 06-73846
• Status: Unpublished

Opinion

MEMORANDUM **

Alicia Betancourt-Flores, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Renteria-Morales v. Mukasey, 551 F.3d 1076, 1080 (9th Cir.2008), and we grant the petition for review.

The agency erred when it applied the modified categorical approach to determine that Betancourt-Flores’s conviction for second degree burglary under Cal.Penal Code § 459 constituted an aggravated felony “attempted theft” offense under 8 U.S.C. § 1101(a)(43)(G) and (U), rendering her ineligible for relief from removal. See Ngaeth v. Mukasey, 545 F.3d 796, 801 (9th Cir.2008) (a conviction under Cal.Penal Code § 459 constitutes an attempted theft offense under 8 U.S.C. § 1101(a)(43)(G) and (U) if the documents in the record of conviction establish that it involved an intent to commit a generic theft offense “coupled with an overt act constituting a substantial step towards the commission of the offense”); Hernandez-Cruz v. Holder, 651 F.3d 1094, 1101-04 (9th Cir.2011) (entry into a commercial building does not constitute a substantial step supporting a conviction for attempted theft).

In addition, the agency found Betane-ourt-Flores removable due to her convictions for second degree burglary and possession of a controlled substance without the benefit of our intervening decisions in Hernandez-Cruz, 651 F.3d at 1105-09 (bare elements of California commercial burglary do not qualify as CIMT as they do not match the elements of any generic CIMT, qualify as fraudulent conduct, or otherwise constitute acts that are per se morally reprehensible), and Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir.2007) (because California drug schedules are broader than the federal Controlled Substance Act, record of conviction must identify the controlled substance involved). On remand, the agency should reconsider its findings of removability in light of our intervening precedent.

We need not address Betancourts Flores’s remaining contentions.

PETITION FOR REVIEW GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.