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Duenas-Alvarez v. Holder

United States Court of Appeals, Ninth Circuit

August 20, 2013

Luis Alexander DUENAS-ALVAREZ, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

Argued March 7, 2011.

Resubmitted Aug. 13, 2013.

Page 813

Allen E. Schoenfeld (argued), Christopher J. Meade, Anne K. Small, Janet Carter, Matthew Jones, and Emily M. Meyers, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Petitioner.

Bryan S. Beier (argued), Carol Federighi, and Allen W. Hausman, Senior Litigation Counsel, Tony West and Peter D. Keisler, Assistant Attorneys General, and Richard M. Evans, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072-984-337.

Before: STEPHEN REINHARDT, SUSAN P. GRABER,[*] and KIM McLANE WARDLAW, Circuit Judges.

Page 814

OPINION

GRABER, Circuit Judge:

Petitioner Luis Alexander Duenas-Alvarez is a native and citizen of Peru who entered the United States in 1990. He became a lawful permanent resident in 1998. In 2002, he was convicted of having violated California Vehicle Code section 10851(a). Thereafter, removal proceedings were initiated. An immigration judge and the Board of Immigration Appeals (" BIA" ) found Petitioner removable because he had committed a theft offense that qualified as an aggravated felony under 8 U.S.C. ยง 1101(a)(43). Petitioner sought review in this court. We granted the petition and remanded on the ground that section 10851(a) criminalizes aiding and abetting, which falls beyond the scope of a generic theft offense. Duenas-Alvarez v. Gonzales, 176 Fed.Appx. 820 (9th Cir.2006) (unpublished). The Supreme Court then granted certiorari, vacated our decision, and remanded the case to us. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). We now deny the petition for review.

The question for decision is whether the government proved that Petitioner was convicted of a qualifying felony theft offense. Petitioner raises two arguments: (1) it is not clear that he was convicted as a principal, instead of as a mere accessory after the fact, under California Vehicle Code section 10851(a); and (2) it is not clear that he was convicted of an act more serious than joy-riding. Neither argument persuades us.

Under the categorical approach, we " compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘ generic’ crime— i.e., the offense as commonly understood." Descamps v. United States, __ U.S. __, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). As the Supreme Court recently clarified, we apply a variant of this method, the modified categorical approach, " when a prior conviction is for violating a so-called ‘ divisible statute.’ " Id. A divisible statute is one that

sets out one or more elements of the offense in the alternative— for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits ... courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach ...

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