NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MAUREEN RIVERA, No. 12-71693
Petitioner, Agency No. A041-286-016
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 15, 2015
San Francisco, California
Before: FLETCHER, BERZON, and BEA, Circuit Judges.
Maureen Rivera, a lawful permanent resident, seeks review of the Board of
Immigration Appeals’ (BIA’s) order finding her removable and pretermitting her
application for cancellation of removal. We grant Rivera’s petition and remand her
case to the agency to determine, in the first instance, whether Rivera qualifies for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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cancellation in light of this panel’s disposition.
Before the agency, Rivera conceded that she was removable on the basis of
two crimes involving moral turpitude: one count of grand theft under California
Penal Code (CPC) § 487(b)(3) and two counts of embezzlement under CPC §§ 508
and 487(a). Grand theft of property is an aggravated felony within the meaning of
8 U.S.C. § 1101(a). Because a conviction for an aggravated felony is a statutory
bar to a lawful permanent resident’s application for cancellation of removal, the
Immigration Judge (IJ) pretermitted Rivera’s application for cancellation.
Recognizing that only theft of property—and not theft of labor—may constitute an
aggravated felony, the IJ found that CPC § 487(b)(3) was divisible and thus subject
to the modified categorical approach. Because Rivera’s criminal information and
abstract of judgment confirm that she stole property and not labor, the IJ concluded
that Rivera had indeed been convicted of an aggravated felony, which foreclosed
her from seeking cancellation of removal. The IJ ordered Rivera removed to the
Philippines, and the BIA affirmed.
Our intervening case law requires reversal of the BIA’s determination. In
Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), we held that California’s
theft statutes, like CPC § 487, are not only overbroad (because they criminalize
theft of labor in addition to theft of property)—but also indivisible (because the
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jury may convict without agreeing unanimously whether the defendant stole
property or labor). Id. at 868–70. California’s theft statutes like CPC § 487 are
therefore not susceptible to the modified categorical approach. Id. at 870. Thus,
regardless of the documents underlying her conviction, Rivera is not barred from
seeking cancellation of removal on the basis of her CPC § 487 conviction—an
indivisible offense. See Rendon v. Holder, 764 F.3d 1077, 1090 (9th Cir. 2014)
(en banc).
Petition GRANTED and REMANDED.
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