FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN C. RAMIREZ-VILLALPANDO, No. 08-72102
AKA Juan Carlos Ramirez,
Petitioner, Agency No.
v. A012-620-554
ORDER AND
ERIC H. HOLDER Jr., Attorney
AMENDED
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 11, 2010—San Francisco, California
Filed April 9, 2010
Amended July 1, 2011
Before: J. Clifford Wallace, Procter Hug, Jr. and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
8917
8920 RAMIREZ-VILLALPANDO v. HOLDER
COUNSEL
Brett A. Shumate, Wiley Rein LLP, Washington, DC, for the
petitioner.
Aimee J. Frederickson, U.S. Department of Justice, Washing-
ton, D.C., for the respondent.
ORDER
The opinion, appearing at 601 F.3d 891 (9th Cir. 2010), is
amended as follows:
Delete the last part of the paragraph that starts on 601 F.3d
at 896 and continues on page 897, such that the following sen-
tences are removed:
The BIA’s review concerned the question of whether
Ramirez-Villalpando’s conviction under California
Penal Code § 487(a) was a valid factual predicate for
an aggravated felony. Ramirez-Villalpando’s convic-
tion was final for purposes of the IJ’s removal deter-
mination and the BIA’s subsequent review. See
RAMIREZ-VILLALPANDO v. HOLDER 8921
Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993)
(“Once an alien has been convicted by a court of
competent jurisdiction and exhausted the direct
appeals to which he is entitled, his conviction is final
for the purpose of the immigration laws.”). Further-
more, “[a] conviction subject to collateral attack or
other modification is still final.” Id.
The first part of the paragraph remains:
Even if it were true that he was convicted for both
grand theft and receipt of the same personal prop-
erty, the validity of Ramirez-Villalpando’s grand
theft conviction, upon which the order of removal
was based, is not properly before us. A petitioner
may not collaterally attack his state court conviction
on a petition for review of a BIA decision. See
Resendiz v. Kovensky, 416 F.3d 952, 960 (9th
Cir.2005).
With the opinion as amended, the panel voted to deny the
petition for rehearing. Judge Clifton has voted to deny the
petition for rehearing en banc, and Judges Wallace and Hug
have recommended denial of the petition. The full court has
been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en
banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc, filed May 24, 2010, are DENIED. No further petitions
for rehearing will be entertained.
8922 RAMIREZ-VILLALPANDO v. HOLDER
OPINION
CLIFTON, Circuit Judge:
Juan C. Ramirez-Villalpando petitions for review of a deci-
sion by the Board of Immigration Appeals affirming an order
of removal based on his conviction for an aggravated felony.
The BIA held that Ramirez-Villalpando’s conviction for
grand theft under California Penal Code § 487(a) qualified as
an aggravated felony under the modified categorical
approach. We agree and deny the petition for review.
I. Background
Ramirez-Villalpando is a citizen of Mexico. He was admit-
ted to the United States as a lawful permanent resident in
1961. In November 1986, Ramirez-Villalpando was placed in
immigration proceedings, and he was later found removable.
At that time, however, he was granted relief under former
INA § 212(c). Aliens who have been granted relief under
§ 212(c) are ineligible for subsequent cancellation of removal.
8 U.S.C. § 1229b(c)(6).
In 2006, Ramirez-Villalpando was arrested and charged by
felony complaint with: (1) grand theft of personal property in
violation of California Penal Code § 487(a) for unlawfully
taking tires and rims, and (2) receiving stolen property in vio-
lation of California Penal Code § 496(a) for obtaining tires
and rims. Ramirez-Villalpando pled guilty to both charges on
November 21, 2006. The abstract of judgment, filed on
December 1, 2006, stated that Ramirez-Villalpando was con-
victed of “GRAND THEFT OF PERS PROPER” under
§ 487(a) and “RECEIVING STOLEN PROPERTY” under
§ 496(a) and that he was sentenced to a 16-month term of
imprisonment on each count, to run concurrently.
The federal government issued a Notice to Appear to
Ramirez-Villalpando seeking to remove him from the United
RAMIREZ-VILLALPANDO v. HOLDER 8923
States on the ground that he had been convicted of an aggra-
vated felony as defined in the Immigration and Naturalization
Act. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is
convicted of an aggravated felony at any time after admission
is deportable.”); 8 U.S.C. § 1101(a)(43)(G) (defining “aggra-
vated felony” to include “a theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment [is] at least one year.”). The Notice to Appear
cited Ramirez-Villalpando’s conviction for grand theft of per-
sonal property in violation of California Penal Code § 487(a)
described above.
During the removal proceedings before the Immigration
Judge (IJ), the government submitted three conviction docu-
ments into the record: the abstract of judgment, the felony
complaint, and a probation officer’s report. The IJ held that
“grand theft of personal property is a crime of theft within the
ambit of Section 101(a)(43)(G) of the Act and therefore is an
aggravated felony as the sentence is more than 1 year.” The
IJ thus ordered Ramirez-Villalpando removed to Mexico.
Ramirez-Villalpando appealed to the BIA, attaching to his
Notice of Appeal the transcript of his California plea hearing.
The BIA upheld the IJ’s conclusion that Ramirez-Villalpando
had been convicted of an aggravated felony and denied his
appeal. The BIA noted that, under our court’s precedent, a
conviction under California Penal Code § 487(a) is not cate-
gorically an aggravated felony because § 487(a) encompasses
the crime of theft of labor in addition to theft of tangible prop-
erty. Turning to the modified categorical approach, the BIA
concluded that “the conviction record reflects that the respon-
dent pled guilty to a charge of grand theft of particular items
of personal property, not labor.” The BIA went on to note in
particular that the transcript of the plea colloquy Ramirez-
Villalpando submitted on appeal indicated that he pled guilty
to the “exact count of the felony complaint that had originally
been lodged against him, a count which plainly charges him
with stealing personal property.”
8924 RAMIREZ-VILLALPANDO v. HOLDER
Ramirez-Villalpando timely petitioned for review of the
BIA’s decision.
II. Discussion
This court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D)
to review questions of law raised by the BIA’s final order.
Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009).
“We review de novo the issue of whether a particular offense
constitutes an aggravated felony.” Rosales-Rosales v. Ash-
croft, 347 F.3d 714, 717 (9th Cir. 2003).
[1] To determine whether a criminal offense qualifies as an
aggravated felony, we apply the categorical and modified cat-
egorical approaches set forth in Taylor v. United States, 495
U.S. 575 (1990). See United States v. Espinoza-Cano, 456
F.3d 1126, 1131 (9th Cir. 2006). We begin with the categori-
cal approach, under which we “look only to the fact of con-
viction and the statutory definition of the prior offense and
compare it to the generic definition of the offense.” Id. (inter-
nal quotation marks omitted).
[2] Ramirez-Villalpando was convicted of violating Cali-
fornia Penal Code § 487(a), which defines grand theft as the
taking of “money, labor, or real or personal property . . . of
a value exceeding four hundred dollars.” By comparison, we
have defined generic theft as “a taking of property or an exer-
cise of control over property without consent with the crimi-
nal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or per-
manent.” Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026
(9th Cir. 2005) (quoting United States v. Corona-Sanchez,
291 F.3d 1201, 1205 (9th Cir. 2002)); see also 8 U.S.C.
§ 1101(a)(43)(G) (defining “aggravated felony” to include “a
theft offense (including receipt of stolen property) or burglary
offense for which the term of imprisonment [is] at least one
year.”). As the generic definition of a theft offense does not
include theft of labor, California Penal Code § 487(a) encom-
RAMIREZ-VILLALPANDO v. HOLDER 8925
passes more than generic theft. See Espinoza-Cano, 456 F.3d
at 1131 (emphasizing California Penal Code § 487(a)’s inclu-
sion of “labor” in the definition of grand theft and stating that
“[b]ecause California’s theft statute criminalizes more than
just the taking of property, [defendant’s] prior conviction for
grand theft is not categorically a conviction for an aggravated
felony.”). Accordingly, Ramirez-Villalpando’s conviction did
not categorically qualify as an aggravated felony.
[3] If the statute of conviction proscribes a broader range
of conduct than the generic offense, we then turn to the modi-
fied categorical approach to “determine if the record unequiv-
ocally establishes that the defendant was convicted of the
generically defined crime, even if the statute defining the
crime is overly inclusive.” Martinez-Perez, 417 F.3d at 1028
(quoting Corona-Sanchez, 291 F.3d at 1211). The court may
“look beyond the [language of the] statute to a narrow, speci-
fied set of documents that are part of the record of conviction,
including the indictment, the judgment of conviction, jury
instructions, a signed guilty plea, or the transcript from the
plea proceedings.” Fernandez-Ruiz v. Gonzales, 468 F.3d
1159, 1163-64 (9th Cir. 2006) (internal quotation marks omit-
ted).
[4] The record before the BIA in this case consisted of the
abstract of judgment, the felony complaint, a probation offi-
cer’s report, and the transcript of the plea colloquy. Ramirez-
Villalpando argues that the abstract of judgment may not be
considered by this Court because the BIA did not explicitly
mention the document in its decision. It is true that “we must
decide whether to grant or deny [a] petition for review based
on the Board’s reasoning rather than our own independent
analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013,
1021 (9th Cir. 2004). That does not mean, however, that our
review may consider only evidence expressly identified in the
BIA’s decision.
[5] The BIA’s decision in this case stated that “the convic-
tion record reflects that the respondent pled guilty to a charge
8926 RAMIREZ-VILLALPANDO v. HOLDER
of grand theft of particular items of personal property, not
labor.” While the BIA elaborated on particular items in the
record, “not[ing] in particular . . . the transcript of the respon-
dent’s plea colloquy,” the BIA did not dismiss or disregard
the other evidence in the record. By referring to the “convic-
tion record,” the BIA sufficiently referenced the record as a
whole. The BIA is not required to “expressly parse or refute
on the record each individual argument or piece of evidence
offered by the petitioner.” Wang v. Board of Immigration
Appeals, 437 F.3d 270, 275 (2d Cir. 2006); see also Almagh-
zar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (holding
that the IJ did not violate petitioner’s due process rights by
not discussing each piece of evidence). “Given the evidence
that was before it and the conclusion it reached in this case,
it is clear that the BIA considered . . . the evidence.” Wang,
437 F.3d at 275.
[6] The abstract of judgment states that Ramirez-
Villalpando was convicted of “GRAND THEFT OF PERS
PROPER” under California Penal Code § 487(a). Ramirez-
Villalpando argues, however, that the abstract of judgment
cannot be considered because this court barred reliance upon
an abstract of judgment to prove the nature of a prior convic-
tion in United States v. Navidad-Marcos, 367 F.3d 903 (9th
Cir. 2004). This argument is unpersuasive for two reasons.
First, the record in the current case is more explicit than
that in Navidad-Marcos. The defendant in Navidad-Marcos
was charged under § 11379 of the California Health and
Safety Code, which this court has concluded “punishes a full
range of conduct encompassed by the statute, which might not
constitute an aggravated felony.” Id. at 906. The government
argued that the description of the crime contained in the
abstract of judgment indicated that Navidad-Marcos pled
guilty specifically to the transportation and sale of a con-
trolled substance, which is an aggravated felony. Id. at 909.
We rejected the government’s argument, stating that it is
“equally plausible, if not more probable, that the abbreviation
RAMIREZ-VILLALPANDO v. HOLDER 8927
in the form merely summarized the title of the statute of con-
viction rather than — as the government would have us pre-
sume — a conscious judicial narrowing of the charging
document.” Id. California Health and Safety Code § 11379 is
titled, “Transportation, sale, furnishing, etc.; punishment,”
and the abstract of judgment stated the crime as “Trans-
port/sell cont. sub.” Id. at 906. We thus held that the abstract
of judgment was “not sufficient to establish ‘unequivocally’
that Navidad-Marcos entered a guilty plea to a different
charge from the one contained in the Information.” Id. at 909.
[7] In contrast, the statute of conviction under which
Ramirez-Villalpando pled guilty is entitled “Grand theft
defined.” Cal. Pen. Code § 487(a). The description of the
crime in the abstract of judgment specified “personal proper-
ty” from a list of potential crimes under § 487(a): “money,
labor, or real or personal property.” The crime described in
the abstract of judgment here may fairly be read as a summary
of Ramirez-Villalpando’s specific offense, not merely a reci-
tation of the title of the statute.
[8] Second, in later decisions we have clarified that
Navidad-Marcos held that the court “erred in relying only on
the abstract of judgment in determining that [a] prior offense
[satisfies the elements of a given generic crime] under the
modified categorical approach.” United States v. Narvaez-
Gomez, 489 F.3d 970, 977 (9th Cir. 2007) (emphasis added).
We have permitted reliance on an abstract of judgment in
combination with a charging document to establish that the
defendant pled guilty to a generic crime under the modified
categorical approach. See, e.g., United States v. Velasco-
Medina, 305 F.3d 839, 852-53 (9th Cir. 2002) (holding that
the abstract of judgment coupled with the information fur-
nished sufficient proof that the defendant was convicted of all
the elements of the generic crime of burglary). See also
Penuliar v. Mukasey, 528 F.3d 603, 610-11 (9th Cir. 2008)
(holding that the abstract of judgment may not sufficiently
establish that the defendant pled guilty to a specific crime
8928 RAMIREZ-VILLALPANDO v. HOLDER
when the only other document provided was the charge,
which simply contained the generic, broad statutory lan-
guage); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 878 (9th
Cir. 2008) (holding that the abstract of judgment does not reli-
ably establish the content of the conviction when it was the
“only judicial record . . . the government produced.”).
[9] Here, the abstract of judgment listing the conviction as
“GRAND THEFT OF PERS PROPER” was corroborated by
the felony complaint listing count 1 as “the crime of GRAND
THEFT OF PERSONAL PROPERTY . . . to wit tires and
rims” and the plea transcript. Together, those documents
clearly and specifically demonstrated that Ramirez-
Villalpando pled guilty to the charge of grand theft of per-
sonal property, an aggravated felony for removal purposes,
and not to a charge of theft of labor.1
Ramirez-Villalpando additionally argues that the felony
complaint is unreliable because it charged Ramirez-
Villalpando with grand theft of personal property under Cali-
fornia Penal Code § 487(a), as well as with receiving stolen
property under California Penal Code § 496(a). Section
496(a) states that “no person may be convicted both pursuant
to this section and of the theft of the same property.” Cal. Pen.
Code § 496(a). Indeed, California law prohibits dual convic-
tions for theft and receipt of the same property. See, e.g., Peo-
ple v. Love, 83 Cal. Rptr. 3d 428, 432 (Cal. Ct. App. 2008).
1
In United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008)
(en banc), we held that minute orders and “documents of equal reliability”
may be considered in determining whether a crime qualifies as a predicate
offense. The government has argued that Snellenberger authorizes us to
rely upon an abstract of judgment because an abstract is also “prepared by
a neutral officer of the court, and . . . the defendant had the right to exam-
ine and challenge its content.” See id. at 702. Because the record here con-
tained reliable corroboration, we do not in this case need to reach the
question of whether our en banc decision in Snellenberger overruled
Navidad-Marcos and permits reliance upon an abstract of judgment with-
out corroboration by other material in the record in applying the modified
categorical approach.
RAMIREZ-VILLALPANDO v. HOLDER 8929
It is not clear from the record that Ramirez-Villalpando was
in fact convicted under both sections for taking and receiving
the same tires and rims. The two counts could have referred
to different items, albeit of the same kind. We cannot presume
a set of facts under which the conviction might be defective.
[10] Even if it were true that he was convicted for both
grand theft and receipt of the same personal property, the
validity of Ramirez-Villalpando’s grand theft conviction,
upon which the order of removal was based, is not properly
before us. A petitioner may not collaterally attack his state
court conviction on a petition for review of a BIA decision.
See Resendiz v. Kovensky, 416 F.3d 952, 960 (9th Cir. 2005).
[11] Ramirez-Villalpando pled guilty to theft of personal
property under California Penal Code § 487(a), acknowledg-
ing that “a plea in this case will result in deportation, denial
of naturalization, denial of re-entry into this country, as well
as exclusion from admission.” His conviction was final as
presented to the BIA, and the question of its validity under
California law is not before us.
III. Conclusion
[12] The record clearly demonstrates that Ramirez-
Villalpando’s conviction under California Penal Code
§ 487(a) qualified as an aggravated felony under the modified
categorical approach. As a result, he is subject to removal
under INA § 237(a)(2)(A)(iii). 8 U.S.C. § 1127(a)(2)(A)(iii).
PETITION DENIED.