Samer Haddad v. Loretta E. Lynch

MEMORANDUM ** Samer Haddad, a native and citizen of Germany, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) final order of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). We grant the petition. The BIA erred as a matter of law when it applied the modified categorical approach to conclude that Haddad’s conviction for petty theft with a prior conviction, in violation of California Penal Code §§ 484(a) and 666, constituted an aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(G); 1227(a)(2)(A)(iii). ‘“[A] petty theft conviction, under Cal.Penal Code §§ 484(a) and 666, is not a categorical match to the federal definition of a theft offense.’ ” Lopez-Valencia, v. Lynch, 798 F.3d 863, 868 (9th Cir.2015) (quoting United States v. Rivera, 658 F.3d 1073, 1077 (9th Cir.2011)). Applying the framework set forth in Descamps v. United States, — U.S,-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Rendon v. Holder, 764 F.3d 1077 (9th Cir.2014), we recently held that “California’s theft statute is both overbroad and indivisible[,] ... [and] should not be subjected to the modified categorical approach.” Id. at 871; see also Almanza-Arenas v. Lynch, No. 09-71415, 2015 WL 9462976, at *6 (9th Cir. Dec. 28, 2015) (en banc). Accordingly, “a California conviction for theft is never an aggravated felony.” Lopez-Valencia, 798 F.3d at 867. Because Haddad has not been convicted of an aggravated felony, the BIA erred by finding Haddad removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)- 1 *748 Because Haddad is not removable as charged, we do not consider whether the BIA abused its discretion by denying Had-dad’s motion to remand to apply for a waiver of inadmissibility under 8 U.S.C. § 1182(h). Nor do we consider Haddad’s due process challenge. PETITION GRANTED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [1] The BIA alternatively found that Haddad was removable because he sustained two convictions for crimes involving moral turpitude (CIMT) that are not a part of a single scheme. See 8 U.S.C. § 1227(a)(2)(A)(ii). Relying on Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 *748 (9th Cir.2005), the BIA concluded that Had-dad’s felony burglary conviction, in violation of California Penal Code § 459, qualified as a CIMT. In its briefing on appeal, the government now concedes that the BIA's legal basis for determining that a § 459 violation qualified as a CIMT was invalidated by our decision in Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir.2011). The government also concedes that, even absent the BIA's misplaced reliance on Cuevas-Gaspar, the documents it submitted for application of the modified categorical approach are insufficient to prove that Haddad’s burglary conviction was a CIMT. We therefore do not consider the effect of Rendon v. Holder, 764 F.3d 1077 (9th Cir.2014), and Almanza-Arenas v. Lynch, No. 09-71415, 2015 WL 9462976 (9th Cir. Dec. 28, 2015) (en banc), if any, on the BIA’s CIMT analysis.