Ngaeth v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BUNTY NGAETH, 
Petitioner, No. 04-71732
v.
 Agency No.
A25-076-631
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals.

Argued and Submitted
May 13, 2008—Pasadena, California

Filed September 24, 2008

Before: Barry G. Silverman and Marsha S. Berzon,
Circuit Judges, and Roger T. Benitez,** District Judge.

Per Curiam Opinion

*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.

13601
 NGAETH v. MUKASEY 13603

COUNSEL

Bill Waddell, Law Office of Bill Waddell, San Diego, Cali-
fornia, for the petitioner.
13604 NGAETH v. MUKASEY
Jeffrey J. Bernstein and Jem C. Sponzo, United States Depart-
ment of Justice, Civil Division, Washington, D.C., for the
respondent.

OPINION

PER CURIAM:

Bunty Ngaeth1 petitions for review of the Board of Immi-
gration Appeals’ (“BIA”) denial of his motion to reopen. He
argues that the BIA erred in holding that his burglary convic-
tion could be classified as an attempted theft offense, qualify-
ing him as an aggravated felon under the Immigration and
Nationality Act (“INA”). See 8 U.S.C. § 1101(43)(G), (U).
We have jurisdiction under 8 U.S.C. § 1252, and we deny the
Petition.

I. BACKGROUND

Ngaeth is a native and citizen of Cambodia. He was admit-
ted to the United States as a refugee in 1980 and became a
lawful permanent resident in 1982. On October 2, 1992,
Ngaeth pled guilty to a second-degree burglary in violation of
section 459 of the California Penal Code and received a one-
year sentence. Section 459 provides, in pertinent part:

Every person who enters any house, room, apart-
ment, tenement, shop, warehouse, store, mill, barn,
stable, outhouse or other building, tent, vessel . . . ,
floating home . . . , railroad car, locked or sealed
cargo container, whether or not mounted on a vehi-
cle, trailer coach . . . , any house car . . . , inhabited
camper . . . , vehicle . . . when the doors are locked,
aircraft . . . , or mine or any underground portion
1
Ngaeth’s first name was misspelled as “Bunny” on his immigration
documents. We hereby amend the caption to reflect the proper spelling.
 NGAETH v. MUKASEY 13605
thereof, with intent to commit grand or petit larceny
or any felony is guilty of burglary.

Ngaeth pled specifically to one count of “enter[ing] a locked
motor vehicle . . . with the intent to commit theft.”

On April 7, 1999, the government served Ngaeth with a
Notice to Appear (“NTA”), charging him with removability
as an alien convicted of an aggravated felony. The NTA was
later amended to allege that the aggravated felony was a “theft
. . . or burglary offense.” See 8 U.S.C. § 1101(a)(43)(G)
(defining “aggravated felony” as “a theft . . . or burglary
offense for which the term of imprisonment [is] at least one
year”).2 Ngaeth claimed he was not removable because vehic-
ular burglary under section 459 of the California Penal Code
was not a burglary offense or a crime of violence under Ye v.
I.N.S., 214 F.3d 1128, 1131-34 (9th Cir. 2000), and because
it was not a theft offense. But the immigration judge (“IJ”)
concluded that Ngaeth’s conviction for entering a locked
vehicle “with the intent to commit theft” was an attempted
theft offense, and, therefore, an aggravated felony under 8
U.S.C. § 1101(a)(43)(U).

Ngaeth appealed to the BIA. The BIA initially remanded
the case to the IJ to address the availability of relief in light
of INS v. St. Cyr, 533 U.S. 289 (2001). Ngaeth did not appear
at two hearings on remand and was ordered removed in
absentia. He moved to reopen, claiming that: (1) he had not
2
Despite amending the NTA several times, the government only
charged Ngaeth with removability pursuant to subsection (G) of
§ 1101(a)(43), omitting subsection (U) from the NTA. But, as Ngaeth con-
ceded at the oral argument, he did not challenge the defective NTA before
the BIA, and so has not exhausted any notice issues arising from the NTA.
See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004). Furthermore, Ngaeth chose to forego an opportunity to chal-
lenge an apparent deficiency in the NTA after the BIA remanded his case
to the IJ for further proceedings on an unrelated issue. We, therefore,
decline to address the notice issue in this Opinion.
13606 NGAETH v. MUKASEY
been removed on the basis of “clear, unequivocal, and con-
vincing evidence,” see 8 U.S.C. § 1229a(b)(5); and that (2)
his conviction did not constitute an aggravated felony. The IJ
declined to reopen, and the BIA affirmed. This Petition fol-
lowed.

II. STANDARD OF REVIEW

We have jurisdiction to review final orders of removal for
commission of an aggravated felony and motions to reopen
such orders, “to the extent that the petition for review raises
constitutional claims or questions of law.” Vizcarra-Ayala v.
Mukasey, 514 F.3d 870, 872 (9th Cir. 2008) (citing 8 U.S.C.
§ 1252(a)(2)(C)-(D)); see Ghahremani v. Gonzales, 498 F.3d
993, 998 & n.5 (9th Cir. 2007) (applying this jurisdictional
analysis to a motion to reopen). “We review the BIA’s ruling
on the motion to reopen for an abuse of discretion and will
reverse the denial of the motion to reopen only if the BIA
acted arbitrarily, irrationally, or contrary to law.” See Nath v.
Gonzales, 467 F.3d 1185, 1187 (9th Cir. 2006) (internal quo-
tation marks omitted) (reviewing, on this standard, the denial
of a motion to reopen premised on the legal adequacy of the
petitioner’s convictions as the basis for removal).

It would be contrary to law to remove Ngaeth if he did not
commit an aggravated felony offense. We review de novo
whether a particular offense is an “aggravated felony” under
the INA. Vizcarra-Ayala, 514 F.3d at 873; Ruiz-Morales v.
Ashcroft, 361 F.3d 1219, 1221 (9th Cir. 2004).

III. DISCUSSION

Ngaeth raises only one issue on appeal: That the IJ and the
BIA erred in concluding that he is an aggravated felon. Spe-
cifically, he claims that his conviction for burglary does not
amount to an “aggravated felony” under the INA. Ngaeth con-
tinues to rely on Ye v. INS, which holds that a section 459
vehicular burglary conviction is neither a burglary offense nor
 NGAETH v. MUKASEY 13607
a crime of violence (which are both aggravated felonies under
the INA). See Ye, 214 F.3d at 1131-34. Ye left unanswered,
however, whether a section 459 conviction nevertheless con-
stitutes an attempted theft offense for purposes of the aggra-
vated felony definition provided in 8 U.S.C. § 1101(a)
(43)(U).

[1] The two circuits that have addressed this issue have
both concluded, or suggested, that a vehicular burglary can
qualify as an attempted theft offense under the INA. See
United States v. Martinez-Garcia, 268 F.3d 460, 462 (7th Cir.
2001), cert. denied, 534 U.S. 1149 (2002); Lopez-Elias v.
Reno, 209 F.3d 788, 792 n.7 (5th Cir. 2000), cert. denied, 531
U.S. 1069 (2001). As discussed below, our analysis under
Taylor v. United States, 495 U.S. 575, 602 (1990), compels a
similar result in this case.

A. Taylor’s Categorical Approach

Under the categorical approach first articulated in Taylor,
an offense is an aggravated felony if “the full range of con-
duct covered by the [criminal statute] falls within the mean-
ing” of the relevant definition of an aggravated felony.
Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir. 2008) (quot-
ing Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002)). Thus
we must decide whether section 459 categorically describes
an attempted theft offense under Taylor. The generic defini-
tion of “theft offense” as it is used in section 1101(a)(43)(G)
of the INA is “a taking of property or an exercise of control
over property without consent with the criminal intent to
deprive the owner of rights and benefits of ownership, even
if such deprivation is less than total or permanent.” Penuliar,
528 F.3d at 611 (citing United States v. Vidal, 504 F.3d 1072,
1077 (9th Cir. 2007) (en banc)).

[2] We have not previously stated a generic definition of
“attempt” for the purposes of 8 U.S.C. § 1101(a)(43)(U),
although we have sometimes made references to that aggra-
13608 NGAETH v. MUKASEY
vated felony category. See, e.g., Rebilas v. Mukasey, 527 F.3d
783, 787 (9th Cir. 2008); Kharana v. Gonzales, 487 F.3d
1280, 1282 n.3 (9th Cir. 2007); Li v. Ashcroft, 399 F.3d 892,
896 n.8 (9th Cir. 2004). In the sentencing context, we generi-
cally define “attempt” as containing two elements: “(1) an
intent to engage in criminal conduct, coupled with (2) an
overt act constituting a substantial step toward the commis-
sion of the crime.” United States v. Morales-Perez, 467 F.3d
1219, 1222 (9th Cir. 2006). This definition is consistent with
that used in the immigration context by the Second and Sev-
enth Circuits, see Martinez-Garcia, 268 F.3d at 465; Sui v.
INS, 250 F.3d 105, 115 (2d Cir. 2001), and we employ it here.

[3] In this case, then, section 459 describes an attempted
theft offense if it criminalizes an intent to commit a theft
offense, of the sort generically defined by Penuliar and earlier
cases, coupled with an overt act constituting a substantial step
towards the commission of the offense. Applying this defini-
tion, we hold that section 459 does not categorically define an
attempted theft offense. It “reaches both conduct that would
constitute an aggravated felony and conduct that would not.”
See Penuliar, 528 F.3d at 608; Ye, 214 F.3d at 1133.

We need not look far to so determine. Section 459 may be
violated by an attempt to commit a crime other than theft —
for example, by breaking into a vehicle with the intent to
commit arson. Obviously, such a crime has nothing to do with
attempted theft. “[W]here, as here, the state statute plainly and
specifically criminalizes conduct outside the contours of the
federal definition, we do not engage in judicial prestidigita-
tion by concluding that the statute ‘creates a crime outside the
generic definition of a listed crime.’ ” Cerezo v. Mukasey, 512
F.3d 1163, 1167 (9th Cir. 2008) (quoting Gonzales v. Duenas-
Alvarez, 127 S. Ct. 815, 822 (2007); see also Vidal, 504 F.3d
at 1082. In sum, section 459 does not categorically define an
attempted theft offense under 8 U.S.C. § 1101(43)(U). Cf.
Morales-Perez, 467 F.3d at 1222.
 NGAETH v. MUKASEY 13609
B. Taylor’s Modified Categorical Approach

[4] “Where a state statute is categorically broader than the
generic definition of a crime, we employ a modified categori-
cal approach.” Navarro-Lopez v. Gonzales, 503 F.3d 1063,
1073 (9th Cir. 2007) (en banc). Under this approach, we con-
duct “a limited examination of documents in the record of
conviction to determine if there is sufficient evidence to con-
clude that a defendant was convicted of the elements of the
generically defined crime,” without reviewing the particular
facts underlying the conviction. Chang, 307 F.3d at 1189.

We must first determine whether Ngaeth’s conviction con-
tains the elements of attempted theft. The Fifth and Seventh
Circuits, considering similar statutes, have so indicated. See
Martinez-Garcia, 268 F.3d at 462; Lopez-Elias, 209 F.3d at
792 n.7.

In Lopez-Elias v. Reno, the petitioner was charged with
vehicular burglary with the intent to commit theft. See Lopez-
Elias, 209 F.3d at 792 n.7. The Fifth Circuit held that the peti-
tioner had not actually committed a theft offense, because he
pled guilty to having an intent to commit theft but not to hav-
ing stolen anything. Id. at 792. The court noted, however, that
the petitioner “could have been removed . . . based alterna-
tively on the theory that burglary of a vehicle with intent to
commit theft is tantamount to an offense of attempted theft.”
Id. at 792 n.7 (emphasis in original).

In Martinez-Garcia, the petitioner pled guilty to vehicular
burglary, admitting that he “without authority, knowingly
entered a motor vehicle . . . with the intent to commit therein
a theft.” Martinez-Garcia, 268 F.3d at 462. In the Seventh
Circuit’s view, this conduct was “a substantial step toward the
commission of the theft.” Id. at 466. The conviction was,
therefore, an attempted theft offense and thus an aggravated
felony.
13610 NGAETH v. MUKASEY
[5] We agree with the reasoning of our sister circuits. Cf.
Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004)
(noting that, “[i]n the immigration context, . . . the need for
national uniformity is paramount”). Although we are mindful
of the Second Circuit’s warning that inchoate crimes like
attempt are highly fact-specific, with the result that many will
not be amenable to categorical analysis, see Sui, 250 F.3d at
119, it is clear that entering a “vehicle . . . when the doors are
locked,” Cal. Penal Code § 459, clearly constitutes a substan-
tial step towards committing a theft. When that entry is com-
mitted with an intent to “commit grand or petit larceny,” as
the statute provides, our generic definition of attempted theft
is satisfied. We, therefore, hold that a conviction for entering
a locked vehicle with the intent to commit theft constitutes an
attempted theft offense for purposes of the aggravated felony
definition.

[6] Having held that entering a locked vehicle with intent
to commit theft is an attempted theft offense, we must now
determine whether Ngaeth pled to those elements of section
459. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th
Cir. 2003) (noting that “charging documents in combination
with a signed plea agreement, jury instructions, guilty pleas,
transcripts of a plea proceeding, and the judgment may suffice
to document the elements of conviction” under the modified
categorical approach). Ngaeth pled guilty to Count 1 of the
criminal complaint, which provided, in pertinent part, that he
“enter[ed] a locked motor vehicle, . . . with the intent to com-
mit theft, in violation of Penal Code Section 459.” Ngaeth fur-
ther admitted the facts supporting this specific charge in his
written plea and waiver-of-right form.

[7] We have the “defendant’s own admissions . . . [to] con-
firm[ ] the factual basis for a valid plea” to the elements of the
generic offense of attempted theft. See Penuliar, 523 F.3d at
971 (quoting Vidal, 504 F.3d at 1088-89). Ngaeth is, there-
fore, an aggravated felon under the modified categorical
approach.
 NGAETH v. MUKASEY 13611
IV. CONCLUSION

[8] We conclude that Ngaeth is removable for having com-
mitted the aggravated felony offense of attempted theft.
Accordingly, we deny his Petition.

PETITION DENIED.