FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISRAEIL GUZMAN- No. 23-9
MALDONADO,
Agency No.
A044-561-628
Petitioner,
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2024 *
Phoenix, Arizona
Filed February 14, 2024
Before: Marsha S. Berzon, Andrew D. Hurwitz, and
Anthony Johnstone, Circuit Judges.
Opinion by Judge Hurwitz
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 GUZMAN-MALDONADO V. GARLAND
SUMMARY **
Immigration
Denying Israeil Guzman-Maldonado’s petition for
review of a decision of the Board of Immigration Appeals,
the panel held that a conviction for armed robbery in
violation of Arizona Revised Statutes (“A.R.S.”) § 13-
1904(A), for which the term of imprisonment imposed is at
least one year, is categorically an aggravated felony theft
offense giving rise to removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii).
Applying the categorical approach, the panel explained
that the elements of generic federal theft are (1) a taking of
property or an exercise of control over property (2) without
consent of the owner (3) with the criminal intent to deprive
the owner of rights and benefits of ownership, even if such
deprivation is less than total or permanent. As for the
Arizona offense of armed robbery, the panel explained that
the state must prove that the defendant, while armed with a
real or simulated deadly weapon, (1) took property from a
person or his immediate presence (2) against that person’s
will (3) using or threatening force with the coexistent intent
to take the property.
Comparing the elements of the generic federal crime and
of Arizona armed robbery, the panel concluded that
Guzman’s conviction under A.R.S. § 13-1904(A)
necessarily required proof of each element of generic theft,
and that the Arizona offense is therefore on its face an
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GUZMAN-MALDONADO V. GARLAND 3
aggravated felony under 8 U.S.C. § 1101(a)(43)(G) if the
term of imprisonment is, as it was in this case, at least one
year. Thus, the panel concluded that the agency did not err
in finding Guzman removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii).
COUNSEL
Christopher J. Stender, Federal Immigration Counselors AZ
PC, Phoenix, Arizona, for Petitioner.
Lindsay Corliss, Trial Attorney, Office of Immigration
Litigation, Civil Division; John S. Hogan, Assistant
Director; Office of Immigration Litigation; Brian Boynton,
Principal Deputy Attorney General, Civil Division; United
States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
HURWITZ, Circuit Judge:
Israeil Guzman-Maldonado, a citizen of Mexico and
lawful permanent resident of the United States, pleaded
guilty in Arizona superior court in 2019 to three counts of
armed robbery in violation of Arizona Revised Statutes
(“A.R.S.”) § 13-1904(A). He was sentenced to concurrent
eight-year terms on the first two counts and two years of
probation on the third. In 2022, an immigration judge
ordered Guzman removed because he had been convicted of
(1) an aggravated felony theft offense, and (2) two crimes
involving moral turpitude (“CIMTs”) not arising from a
4 GUZMAN-MALDONADO V. GARLAND
single scheme. The Board of Immigration Appeals
dismissed Guzman’s appeal, and he now petitions for
review.
We conclude that an Arizona armed robbery conviction
for which the term of imprisonment imposed is at least one
year is an aggravated felony theft offense giving rise to
removability under 8 U.S.C. § 1227(a)(2)(A)(iii). We
therefore deny the petition.
I.
A noncitizen convicted of an aggravated felony after
admission is removable. Id. “[A] theft . . . or burglary
offense for which the term of imprisonment” is “at least one
year” is an aggravated felony under the Immigration and
Nationality Act (“INA”). Id. § 1101(a)(43)(G). Although
the INA generally precludes judicial review of removal
orders based on aggravated felonies, id. § 1252(a)(2)(C), we
retain jurisdiction over “constitutional claims or questions of
law raised” in petitions for review challenging such orders,
id. § 1252(a)(2)(D). “Whether an offense is an aggravated
felony for [removal] purposes is a question of law.” Kwong
v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (quoting
Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.
2006)).
We “employ the categorical approach to determine
whether a state criminal conviction is an aggravated felony”
under the INA. Medina-Rodriguez v. Barr, 979 F.3d 738,
744 (9th Cir. 2020). The inquiry proceeds in three parts:
first, we “identify the elements of the generic federal
offense”; second, we “identify the elements of the specific
crime of conviction”; and third, “we compare the statute of
conviction to the generic federal offense to determine
whether the specific crime of conviction meets the definition
GUZMAN-MALDONADO V. GARLAND 5
of an aggravated felony.” Yim v. Barr, 972 F.3d 1069, 1077–
78 (9th Cir. 2020) (cleaned up). The determinative issue is
whether the state conviction “necessarily involved facts
equating to the generic federal offense.” Moncrieffe v.
Holder, 569 U.S. 184, 190 (2013) (cleaned up).
We therefore begin by identifying the elements of
generic federal “theft.” Those elements are (1) “a taking of
property or an exercise of control over property” (2)
“without consent” of the owner (3) “with the criminal intent
to deprive the owner of rights and benefits of ownership,
even if such deprivation is less than total or permanent.”
United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th
Cir. 2002) (en banc) (quoting Hernandez-Mancilla v. INS,
246 F.3d 1002, 1009 (7th Cir. 2001)).
We next turn to the elements of the crime of conviction.
The state statute Guzman was convicted of violating, A.R.S.
§ 13-1904(A), provides that:
A person commits armed robbery if, in the
course of committing robbery as proscribed
in section 13-1902, the person or an
accomplice does any of the following:
1. Is armed with a deadly weapon or a
simulated deadly weapon.
2. Uses or threatens to use a deadly
weapon or dangerous instrument or a
simulated deadly weapon.
3. Takes possession of or attempts to
take possession of a deadly weapon.
6 GUZMAN-MALDONADO V. GARLAND
The cross-referenced provision, A.R.S. § 13-1902, provides
that:
A person commits robbery if in the course of
taking any property of another from his
person or immediate presence and against his
will, such person threatens or uses force
against any person with intent either to coerce
surrender of property or to prevent resistance
to such person taking or retaining property.
Thus, to establish armed robbery, the state must prove that
the defendant, while armed with a real or simulated deadly
weapon, (1) took property from a person or his immediate
presence (2) against that person’s will (3) using or
threatening force with the coexistent intent to take the
property. See State v. Wallace, 728 P.2d 232, 235 (Ariz.
1986).
A comparison of the elements of the generic federal
crime and of Arizona armed robbery shows that Guzman’s
conviction under A.R.S. § 13-1904(A) “necessarily”
required proof of each element of generic theft. See
Moncrieffe, 569 U.S. at 190. The Arizona offense is
therefore on its face an aggravated felony under the INA if
the term of imprisonment is, as it was in this case, at least
one year. 8 U.S.C. § 1101(a)(43)(G). Indeed, the Arizona
statute is materially identical to a Washington robbery
statute that we have previously held to involve an aggravated
felony theft offense. See United States v. Alvarado-Pineda,
774 F.3d 1198, 1202–03 (9th Cir. 2014) (involving Wash.
Rev. Code § 9A.56.190, which defines robbery as the taking
of “personal property from the person of another or in his or
her presence against his or her will by the use or threatened
GUZMAN-MALDONADO V. GARLAND 7
use of immediate force, violence, or fear of injury,” and has
been interpreted by state courts to require “specific intent to
steal”); see also Alfred v. Garland, 64 F.4th 1025, 1031,
1048 (9th Cir. 2023) (en banc) (declining to revisit
Alvarado-Pineda).
II.
Guzman argues that the Arizona statute, like the Oregon
statute at issue in Lopez-Aguilar v. Barr, 948 F.3d 1143 (9th
Cir. 2020), prohibits conduct that would not constitute
generic theft because it encompasses “consensual” takings.
That argument fails.
Under the Oregon statute, robbery could be committed
“in the course of committing or attempting to commit theft,”
which in turn was defined to include “theft by deception.”
Id. at 1147–48 (citing Or. Rev. Stat. §§ 164.015(4), 164.085,
164.395). Because “theft by deception” includes
“consensual” takings, “such as theft by false pretenses,” we
held that the Oregon robbery statute was broader than
generic theft. Id. at 1147–49 (citing Lopez-Valencia v.
Lynch, 798 F.3d 863, 867–68 (9th Cir. 2015)); see also
Corona-Sanchez, 291 F.3d at 1205 (stating that generic theft
crimes occur “without consent”).
The Arizona armed robbery statute, however, applies
only to offenses committed “in the course of committing
robbery.” A.R.S. § 13-1904(A) (cross-referencing § 13-
1902) (emphasis added). The statute thus applies only to
thefts committed “against [the] will” of the property owner,
id. § 13-1902, matching the requirement of the generic crime
that the taking occur “without consent.” Thus, although it
may be possible in Arizona to commit theft by consensual
means, see id. § 13-1802(A)(2), (3), Arizona robbery, like
the generic crime of theft, requires a taking without consent.
8 GUZMAN-MALDONADO V. GARLAND
Guzman also urges that Arizona armed robbery covers
the theft of services, which would make it broader than
generic theft. See Huerta-Guevara v. Ashcroft, 321 F.3d
883, 887 (9th Cir. 2003) (holding that a conviction for theft
under A.R.S. § 13-1802 is not a generic theft offense
because “services are not property”). That argument also
fails. Although Arizona’s theft statute encompasses theft of
services, A.R.S. § 13-1802(A)(3); Huerta-Guevara, 321
F.3d at 887, the robbery statute, like the generic crime,
criminalizes only the taking of “property,” A.R.S. § 13-
1902. 1
III.
A conviction pursuant to A.R.S. § 13-1904(A)
categorically constitutes a generic theft offense. The agency
therefore did not err in finding Guzman removable under 8
U.S.C. § 1227(a)(2)(A)(iii). 2
PETITION FOR REVIEW DENIED.
1
The Arizona criminal statutes separately define “property,” see A.R.S.
§ 13-1801(12), and “services,” see id. § 13-1801(14).
2
Because we agree with the agency that Guzman was removable because
of his aggravated felony conviction, we need not consider whether he
was also convicted of two CIMTs not arising out of a single scheme.