Jesus Flores v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 27 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS ALAN FLORES, No. 17-73461
Petitioner, Agency No. A096-923-560
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 14, 2019
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,**
District Judge.
Jesus Alan Flores, a native and citizen of Mexico, petitions for review of his
order of removal. He contends that his conviction under California Vehicle Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
section 10851(a) does not qualify as an aggravated theft offense supporting his
removal.
The California statute, commonly referred to as a “joyriding statute,”
punishes the “Unlawful Taking or Driving of a Vehicle.” Cal. Veh. Code
§ 10851(a). We have held that this statute is not a categorical match for an
aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G) because Section
10851(a) criminalizes accessories after the fact, not just principal actors. See
United States v. Vidal, 504 F.3d 1072, 1086 (9th Cir. 2007) (en banc), abrogated
on other grounds as recognized in Cardozo-Arias v. Holder, 495 F. App’x 790,
792 n.1 (9th Cir. 2012).
Petitioner contends that the statute is also overbroad in that it criminalizes
trivial offenses, like short joyrides, that should not qualify as “theft” offenses. We
have previously rejected similar arguments, ruling that even temporary takings or
“joyrides” under this statute meet the generic definition of a theft offense. See
Duenas-Alvarez v. Holder, 733 F.3d 812, 815 (9th Cir. 2013); Vidal, 504 F.3d at
1098 (9th Cir. 2007) (“[E]ven temporary deprivations of the rights and benefits of
ownership are categorically theft offenses.”). Thus, Section 10851(a) is overbroad
as compared to the generic definition of a theft offense in only one respect: Its
criminalization of accessories after the fact.
2
Because we have held that the statute is divisible in its treatment of
accessories after the fact, see Duenas-Alvarez, 733 F.3d at 815, Petitioner asks us
to look to the record of conviction under a modified categorical analysis to
determine whether he was convicted of the generically defined crime, i.e., as a
principal actor. Relying on United States v. Arriaga-Pinon, 852 F.3d 1195 (9th
Cir. 2017), Petitioner contends that the record of conviction is ambiguous on this
point. In Arriaga-Pinon, because the defendant had pled to driving “or” taking the
vehicle at issue and had not admitted any details about the conduct to which he
pled, we could not discern whether he had been convicted as a principal or
accessory. Id. at 1200.
Here, however, there is no such ambiguity. The factual basis for Petitioner’s
plea states that he drove the car without the owner’s permission with the intent to
deprive the owner of the right to possess that car. Petitioner therefore pled to the
conduct of a principal actor, not an accessory after the fact. Because Petitioner was
unequivocally convicted of the generically defined crime, his conviction provides a
proper basis for his removal.
Petition DENIED.
3