FILED
NOT FOR PUBLICATION APR 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMER HADDAD, No. 11-70674
Petitioner, Agency No. A035-446-592
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2016**
Pasadena, California
Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.
Samer Haddad, a native and citizen of Germany, petitions for review of the
decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the
Immigration Judge’s (IJ) final order of removal. We have jurisdiction under 8
U.S.C. § 1252(a)(2)(D). We grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The BIA erred as a matter of law when it applied the modified categorical
approach to conclude that Haddad’s conviction for petty theft with a prior
conviction, in violation of California Penal Code §§ 484(a) and 666, constituted an
aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(G); 1227(a)(2)(A)(iii). “‘[A]
petty theft conviction, under Cal. Penal Code §§ 484(a) and 666, is not a
categorical match to the federal definition of a theft offense.’” Lopez-Valencia v.
Lynch, 798 F.3d 863, 868 (9th Cir. 2015) (quoting United States v. Rivera, 658
F.3d 1073, 1077 (9th Cir. 2011)). Applying the framework set forth in Descamps
v. United States, 133 S. Ct. 2276 (2013), and Rendon v. Holder, 764 F.3d 1077 (9th
Cir. 2014), we recently held that “California’s theft statute is both overbroad and
indivisible[,]. . . [and] should not be subjected to the modified categorical
approach.” Id. at 871; see also Almanza–Arenas v. Lynch, No. 09–71415, 2015
WL 9462976, at *6 (9th Cir. Dec. 28, 2015) (en banc). Accordingly, “a California
conviction for theft is never an aggravated felony.” Lopez-Valencia, 798 F.3d at
2
867. Because Haddad has not been convicted of an aggravated felony, the BIA
erred by finding Haddad removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).1
Because Haddad is not removable as charged, we do not consider whether
the BIA abused its discretion by denying Haddad’s motion to remand to apply for a
waiver of inadmissibility under 8 U.S.C. § 1182(h). Nor do we consider Haddad’s
due process challenge.
PETITION GRANTED.
1
The BIA alternatively found that Haddad was removable because he
sustained two convictions for crimes involving moral turpitude (CIMT) that are not
a part of a single scheme. See 8 U.S.C. § 1227(a)(2)(A)(ii). Relying on Cuevas-
Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), the BIA concluded that
Haddad’s felony burglary conviction, in violation of California Penal Code
§ 459, qualified as a CIMT. In its briefing on appeal, the government now
concedes that the BIA’s legal basis for determining that a § 459 violation qualified
as a CIMT was invalidated by our decision in Hernandez-Cruz v. Holder, 651 F.3d
1094 (9th Cir. 2011). The government also concedes that, even absent the BIA’s
misplaced reliance on Cuevas-Gaspar, the documents it submitted for application
of the modified categorical approach are insufficient to prove that Haddad’s
burglary conviction was a CIMT. We therefore do not consider the effect of
Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), and Almanza–Arenas v. Lynch,
No. 09–71415, 2015 WL 9462976 (9th Cir. Dec. 28, 2015) (en banc), if any, on the
BIA’s CIMT analysis.
3