FILED
NOT FOR PUBLICATION OCT 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERTO CARLOS GARCIA, No. 08-74569
Petitioner, Agency No. A092-104-762
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 5, 2010
San Francisco, California
Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON **, District
Judge
Roberto Carlos Garcia, a native and citizen of El Salvador, appeals the Board
of Immigration Appeals’ (BIA) order upholding the immigration judge’s (IJ)
decision denying his application for withholding of removal and protection under
*
This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
the Convention Against Torture, and ordering him removed to El Salvador. We
have jurisdiction under 8 U.S.C. § 1252, and grant the petition for review and
vacate the removal order, with instructions to the Department of Homeland Security
to terminate the removal proceedings.
Garcia argues that the BIA erroneously ruled that his California Vehicle
Code § 10851(a) conviction constituted an aggravated felony. We agree. The
government concedes that the BIA erred. Even if the government had not
conceded, the BIA clearly erred because Garcia’s conviction does not qualify as an
aggravated felony under the modified categorical approach. The record of
conviction does not provide enough facts to determine whether Garcia pled guilty
as a principal or as an accessory after the fact to the theft crime.1 The felony
complaint merely recites the language of the statute, which is insufficient to show
that the conviction was of the generically defined crime. Penuliar v. Mukasey, 528
F.3d 603, 613 (9th Cir. 2008). The plea colloquy does not contain enough facts to
show that the conviction was of the generically defined crime either because it
merely shows that Garcia pled guilty to an undefined “Count 1.” Thus, the BIA
1
A conviction of accessory after the fact under Section 10851(a) does not
qualify as an aggravated felony. United States v. Vidal, 504 F.3d 1072, 1080 (9th
Cir. 2007) (en banc).
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could not have known whether Garcia was convicted as a principal in the theft
crime.
The government argues that the Court should remand the case back to the
BIA. We disagree. Remand is not appropriate for three reasons: (1) the issue of
whether a crime constitutes an aggravated felony is purely legal for which we owe
the BIA no deference, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n.7 (9th
Cir. 2006) (en banc); (2) there has been no change in case law because Penuliar
was decided before the BIA made its ruling; and (3) the government had ample
opportunity to submit whatever documents it could for the record and the
government concedes that additional evidence does not exist to enhance Garcia’s
complete record of conviction upon which the BIA based its decision
PETITION GRANTED; ORDER OF REMOVAL VACATED WITH
INSTRUCTIONS TO THE DEPARTMENT OF HOMELAND SECURITY
TO TERMINATE REMOVAL PROCEEDINGS.
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