Reinaldo Carrillo-Jaime v. Eric Holder, Jr. , 533 F. App'x 760 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REINALDO OTONIEL CARRILLO- No. 10-73106
JAIME, aka Reinaldo Carrillo, Reinaldo
Otoniel Carrillo, Agency No. A042-483-280
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 25, 2013
Seattle, Washington
Before: D.W. NELSON, W. FLETCHER, and TALLMAN, Circuit Judges.
Petitioner Reinaldo Otoniel Carrillo-Jaime, a citizen of El Salvador and
lawful permanent resident of the United States, petitions for review of a Board of
Immigration Appeals (“BIA”) decision affirming a determination of an
Immigration Judge (“IJ”) that he was removable.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We considered in 2009 whether Carrillo-Jaime was removable. He was
charged with removability under 8 U.S.C. § 1227(a)(2)(A)(i) for being convicted
of a crime involving moral turpitude committed within five years after admission
and under 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of two crimes involving
moral turpitude any time after admission. Carrillo-Jaime had an application
pending under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §
1182(c) (repealed 1996), for discretionary relief from removal. Carrillo-Jaime was
also charged with removability for having committed an aggravated felony under 8
U.S.C. § 1227(a)(2)(A)(iii) because, the government argued, he had been convicted
of a theft offense. If Carrillo-Jaime were properly convicted of an aggravated
felony, Section 212(c) relief would not be available. See 8 U.S.C. § 1229b(a)(3)
(individual convicted of aggravated felony not eligible for cancellation of
removal).
The government argued to us in 2009 that Carrillo-Jaime had been convicted
of a theft offense under both a categorical and modified categorical approach. See
Taylor v. United States, 495 U.S. 575 (1990). The government had submitted to
the IJ three documents to support its argument under the modified categorical
approach: the statutes defining the elements of a chop shop violation; the charging
document; and the abstract of judgment. This court had already clearly held that
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the charging document and abstract of judgment were insufficient to establish the
factual basis of an alien’s conviction. See Martinez-Perez v. Gonzales, 417 F.3d
1022, 1028–29 (9th Cir. 2005).
Our panel published an opinion granting Carrillo-Jaime’s petition for
review. Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009). We held that
California Vehicle Code § 10801 is not a theft offense under the categorical
approach. Id. at 749. We also held “that the record is not sufficient to establish
that Carrillo-Jaime’s § 10801 conviction is an aggravated felony theft offense
under the modified categorical approach.” Id. We stated:
The government has presented no evidence that “any motor vehicle or motor
vehicle part” over which Carrillo-Jaime exercised control while owning or
operating a chop shop was obtained without the owner’s consent.
Consequently, the government has not established that Carrillo-Jaime
committed a § 1101(a)(43)(G) theft offense under the modified categorical
approach.
Id. at 754. We remanded for further proceedings. Id. at 754–55. Given our
rejection on the merits of the government’s arguments under the categorical and
modified categorical approaches, the only question left open on remand was the
discretionary decision whether to grant Section 212(c) relief.
After remand from our court, the BIA remanded to the IJ. Before the IJ, the
government submitted new documents, including a transcript of the plea
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proceedings and several police reports, in support of its contention that Carrillo-
Jaime had committed a theft offense under the modified categorical approach. All
of the documents were dated at the time of Carrillo-Jaime’s criminal plea and had
previously been available to the government. The IJ concluded that Carrillo-Jaime
had been convicted of a theft offense, and the BIA affirmed.
Our prior remand did not permit the government a second chance to
introduce evidence to support its claim that Carrillo-Jaime’s conviction qualified as
a theft offense under the modified categorical approach. Under the law of the
mandate, “whatever was before this court, and disposed of by its decree, is
considered as finally settled.” In re Sanford Fork & Tool Co., 160 U.S. 247, 255
(1895). In 2009, the government argued in its brief to us that Carrillo-Jaime had
been convicted of a theft offense based on the modified categorical approach, and
the question was thus “before” us at that time. Id. The modified categorical
approach was also “disposed of” by our mandate in 2009. Id. The BIA correctly
interpreted our decision as holding “that the respondent’s conviction did not
constitute an aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). Compare
Cisneros-Perez v. Gonzales, 465 F.3d 386, 394 (9th Cir. 2006) (finding “there was
not sufficient documentation before the IJ to permit the conclusion that
Cisneros-Perez’s conviction was necessarily for a crime of domestic violence” and
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remanding to consider discretionary relief), and Martinez-Perez, 417 F.3d at 1029(holding that no aggravated felony had been committed “[b]ecause the record does
not establish that Martinez’s conviction for grand theft constitutes a generic theft
offense, under either the categorical or modified categorical approach”), with
Carrillo-Jaime, 572 F.3d at 749 (“[T]he record is not sufficient to establish that
Carrillo-Jaime’s § 10801 conviction is an aggravated felony theft offense under the
modified categorical approach.”).
We grant Carrillo-Jaime’s petition and hold that our prior mandate precluded
the agency from reconsidering whether Carrillo-Jaime was convicted of an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). We remand to the BIA for
the sole purpose of determining whether to grant relief under Section 212(c).
PETITION FOR REVIEW GRANTED; REMANDED
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