Julio Lozada v. Loretta E. Lynch

Ninth Circuit

Julio Lozada v. Loretta E. Lynch

672 F. App'x 684

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 23, 2016

Docket11-71464

StatusUnpublished

This text of 672 F. App'x 684 (Julio Lozada v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Julio Lozada v. Loretta E. Lynch, 672 F. App'x 684 (9th Cir. 2016).

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Opinion

MEMORANDUM *

Julio Cesar Lozada (“Lozada”) seeks review of the denial of his application for cancellation of removal. The Board of Immigration Appeals (“BIA”) found Lozada *685 ineligible for cancellation of removal based on his guilty plea to Criminal Impersonation under Arizona Revised Statutes § 13-2006, which the BIA deemed a conviction for a crime involving moral turpitude (“CIMT”). Concluding that the BIA erred in its application of the modified categorical approach, we grant relief.

The charging documents, conviction document, and plea agreement in Lozada’s case fail to specify the subsection of his conviction under section 13-2006(A). Applying the modified categorical approach, the BIA solely relied on the factual-basis statement made by Lozada’s attorney during the plea colloquy to conclude that Lo-zada was convicted under subsection 13-2006(A)(1), a .categorical CIMT. See De Martinez v. Holder, 770 F.3d 823, 824 (9th Cir. 2014).

However, the factual-basis statement alone was an insufficient basis for such a determination. See United States v. Marcia-Acosta, 780 F.3d 1244, 1255 (9th Cir. 2015). The modified categorical approach permitted the BIA to review the plea colloquy “only to determine ‘which statutory phrase was the basis for the conviction,’ ” and not “to discover what the defendant actually did.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438 (2013). (quoting Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). The BIA erred in using the modified categorical approach “to try to discern what ... a plea proceeding revealed[] about the defendant’s underlying conduct.” Id. at 2288. Because we cannot determine which subsection of Arizona Revised Statutes § 13-2006(A) Lozada was convicted of violating, and one of those subsections has no intent to defraud requirement, it was error for the BIA to find that Lozada had been convicted of a CIMT. 1

PETITION GRANTED and REMANDED for further proceedings consistent with this Memorandum.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. Lozada’s motion to stay appellate proceed-tags is denied as moot.

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MEMORANDUM *

Julio Cesar Lozada (“Lozada”) seeks review of the denial of his application for cancellation of removal. The Board of Immigration Appeals (“BIA”) found Lozada *685 ineligible for cancellation of removal based on his guilty plea to Criminal Impersonation under Arizona Revised Statutes § 13-2006, which the BIA deemed a conviction for a crime involving moral turpitude (“CIMT”). Concluding that the BIA erred in its application of the modified categorical approach, we grant relief.

The charging documents, conviction document, and plea agreement in Lozada’s case fail to specify the subsection of his conviction under section 13-2006(A). Applying the modified categorical approach, the BIA solely relied on the factual-basis statement made by Lozada’s attorney during the plea colloquy to conclude that Lo-zada was convicted under subsection 13-2006(A)(1), a .categorical CIMT. See De Martinez v. Holder, 770 F.3d 823, 824 (9th Cir. 2014).

However, the factual-basis statement alone was an insufficient basis for such a determination. See United States v. Marcia-Acosta, 780 F.3d 1244, 1255 (9th Cir. 2015). The modified categorical approach permitted the BIA to review the plea colloquy “only to determine ‘which statutory phrase was the basis for the conviction,’ ” and not “to discover what the defendant actually did.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438 (2013). (quoting Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). The BIA erred in using the modified categorical approach “to try to discern what ... a plea proceeding revealed[] about the defendant’s underlying conduct.” Id. at 2288. Because we cannot determine which subsection of Arizona Revised Statutes § 13-2006(A) Lozada was convicted of violating, and one of those subsections has no intent to defraud requirement, it was error for the BIA to find that Lozada had been convicted of a CIMT. 1

PETITION GRANTED and REMANDED for further proceedings consistent with this Memorandum.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. Lozada’s motion to stay appellate proceed-tags is denied as moot.

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