Ramirez-Villalpando v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN C. RAMIREZ-VILLALPANDO, 

AKA Juan Carlos Ramirez,

No. 08-72102

Petitioner,

v.  Agency No.

A012-620-554

ERIC H. HOLDER Jr., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 11, 2010—San Francisco, California

Filed April 9, 2010

Before: J. Clifford Wallace, Procter Hug, Jr. and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

5429

5432 RAMIREZ-VILLALPANDO v. HOLDER

COUNSEL

Brett A. Shumate, Wiley Rein LLP, Washington, DC, for the

petitioner.

Aimee J. Frederickson, U.S. Department of Justice, Washing-

ton, D.C., for the respondent.

OPINION

CLIFTON, Circuit Judge:

Juan C. Ramirez-Villalpando petitions for review of a deci-

sion by the Board of Immigration Appeals affirming an order

of removal based on his conviction for an aggravated felony.

The BIA held that Ramirez-Villalpando’s conviction for

grand theft under California Penal Code § 487(a) qualified as

an aggravated felony under the modified categorical

approach. We agree and deny the petition for review.

I. Background

Ramirez-Villalpando is a citizen of Mexico. He was admit-

ted to the United States as a lawful permanent resident in

RAMIREZ-VILLALPANDO v. HOLDER 5433

1961. In November 1986, Ramirez-Villalpando was placed in

immigration proceedings, and he was later found removable.

At that time, however, he was granted relief under former

INA § 212(c). Aliens who have been granted relief under

§ 212(c) are ineligible for subsequent cancellation of removal.

8 U.S.C. § 1229b(c)(6).

In 2006, Ramirez-Villalpando was arrested and charged by

felony complaint with: (1) grand theft of personal property in

violation of California Penal Code § 487(a) for unlawfully

taking tires and rims, and (2) receiving stolen property in vio-

lation of California Penal Code § 496(a) for obtaining tires

and rims. Ramirez-Villalpando pled guilty to both charges on

November 21, 2006. The abstract of judgment, filed on

December 1, 2006, stated that Ramirez-Villalpando was con-

victed of “GRAND THEFT OF PERS PROPER” under

§ 487(a) and “RECEIVING STOLEN PROPERTY” under

§ 496(a) and that he was sentenced to a 16-month term of

imprisonment on each count, to run concurrently.

The federal government issued a Notice to Appear to

Ramirez-Villalpando seeking to remove him from the United

States on the ground that he had been convicted of an aggra-

vated felony as defined in the Immigration and Naturalization

Act. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is

convicted of an aggravated felony at any time after admission

is deportable.”); 8 U.S.C. § 1101(a)(43)(G) (defining “aggra-

vated felony” to include “a theft offense (including receipt of

stolen property) or burglary offense for which the term of

imprisonment [is] at least one year.”). The Notice to Appear

cited Ramirez-Villalpando’s conviction for grand theft of per-

sonal property in violation of California Penal Code § 487(a)

described above.

During the removal proceedings before the Immigration

Judge (IJ), the government submitted three conviction docu-

ments into the record: the abstract of judgment, the felony

complaint, and a probation officer’s report. The IJ held that

5434 RAMIREZ-VILLALPANDO v. HOLDER

“grand theft of personal property is a crime of theft within the

ambit of Section 101(a)(43)(G) of the Act and therefore is an

aggravated felony as the sentence is more than 1 year.” The

IJ thus ordered Ramirez-Villalpando removed to Mexico.

Ramirez-Villalpando appealed to the BIA, attaching to his

Notice of Appeal the transcript of his California plea hearing.

The BIA upheld the IJ’s conclusion that Ramirez-Villalpando

had been convicted of an aggravated felony and denied his

appeal. The BIA noted that, under our court’s precedent, a

conviction under California Penal Code § 487(a) is not cate-

gorically an aggravated felony because § 487(a) encompasses

the crime of theft of labor in addition to theft of tangible prop-

erty. Turning to the modified categorical approach, the BIA

concluded that “the conviction record reflects that the respon-

dent pled guilty to a charge of grand theft of particular items

of personal property, not labor.” The BIA went on to note in

particular that the transcript of the plea colloquy Ramirez-

Villalpando submitted on appeal indicated that he pled guilty

to the “exact count of the felony complaint that had originally

been lodged against him, a count which plainly charges him

with stealing personal property.”

Ramirez-Villalpando timely petitioned for review of the

BIA’s decision.

II. Discussion

This court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D)

to review questions of law raised by the BIA’s final order.

Mielewczyk v. Holder, 575 F.3d 992, 994 (9th Cir. 2009).

“We review de novo the issue of whether a particular offense

constitutes an aggravated felony.” Rosales-Rosales v. Ash-

croft, 347 F.3d 714, 717 (9th Cir. 2003).

[1] To determine whether a criminal offense qualifies as an

aggravated felony, we apply the categorical and modified cat-

egorical approaches set forth in Taylor v. United States, 495

RAMIREZ-VILLALPANDO v. HOLDER 5435

U.S. 575 (1990). See United States v. Espinoza-Cano, 456

F.3d 1126, 1131 (9th Cir. 2006). We begin with the categori-

cal approach, under which we “look only to the fact of con-

viction and the statutory definition of the prior offense and

compare it to the generic definition of the offense.” Id. (inter-

nal quotation marks omitted).

[2] Ramirez-Villalpando was convicted of violating Cali-

fornia Penal Code § 487(a), which defines grand theft as the

taking of “money, labor, or real or personal property . . . of

a value exceeding four hundred dollars.” By comparison, we

have defined generic theft as “a taking of property or an exer-

cise of control over property without consent with the crimi-

nal intent to deprive the owner of rights and benefits of

ownership, even if such deprivation is less than total or per-

manent.” Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026

(9th Cir. 2005) (quoting United States v. Corona-Sanchez,

291 F.3d 1201, 1205 (9th Cir. 2002)); see also 8 U.S.C.

§ 1101(a)(43)(G) (defining “aggravated felony” to include “a

theft offense (including receipt of stolen property) or burglary

offense for which the term of imprisonment [is] at least one

year.”). As the generic definition of a theft offense does not

include theft of labor, California Penal Code § 487(a) encom-

passes more than generic theft. See Espinoza-Cano, 456 F.3d

at 1131 (emphasizing California Penal Code § 487(a)’s inclu-

sion of “labor” in the definition of grand theft and stating that

“[b]ecause California’s theft statute criminalizes more than

just the taking of property, [defendant’s] prior conviction for

grand theft is not categorically a conviction for an aggravated

felony.”). Accordingly, Ramirez-Villalpando’s conviction did

not categorically qualify as an aggravated felony.

[3] If the statute of conviction proscribes a broader range

of conduct than the generic offense, we then turn to the modi-

fied categorical approach to “determine if the record unequiv-

ocally establishes that the defendant was convicted of the

generically defined crime, even if the statute defining the

crime is overly inclusive.” Martinez-Perez, 417 F.3d at 1028

5436 RAMIREZ-VILLALPANDO v. HOLDER

(quoting Corona-Sanchez, 291 F.3d at 1211). The court may

“look beyond the [language of the] statute to a narrow, speci-

fied set of documents that are part of the record of conviction,

including the indictment, the judgment of conviction, jury

instructions, a signed guilty plea, or the transcript from the

plea proceedings.” Fernandez-Ruiz v. Gonzales, 468 F.3d

1159, 1163-64 (9th Cir. 2006) (internal quotation marks omit-

ted).

[4] The record before the BIA in this case consisted of the

abstract of judgment, the felony complaint, a probation offi-

cer’s report, and the transcript of the plea colloquy. Ramirez-

Villalpando argues that the abstract of judgment may not be

considered by this Court because the BIA did not explicitly

mention the document in its decision. It is true that “we must

decide whether to grant or deny [a] petition for review based

on the Board’s reasoning rather than our own independent

analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013,

1021 (9th Cir. 2004). That does not mean, however, that our

review may consider only evidence expressly identified in the

BIA’s decision.

[5] The BIA’s decision in this case stated that “the convic-

tion record reflects that the respondent pled guilty to a charge

of grand theft of particular items of personal property, not

labor.” While the BIA elaborated on particular items in the

record, “not[ing] in particular . . . the transcript of the respon-

dent’s plea colloquy,” the BIA did not dismiss or disregard

the other evidence in the record. By referring to the “convic-

tion record,” the BIA sufficiently referenced the record as a

whole. The BIA is not required to “expressly parse or refute

on the record each individual argument or piece of evidence

offered by the petitioner.” Wang v. Board of Immigration

Appeals, 437 F.3d 270, 275 (2d Cir. 2006); see also Almagh-

zar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (holding

that the IJ did not violate petitioner’s due process rights by

not discussing each piece of evidence). “Given the evidence

that was before it and the conclusion it reached in this case,

RAMIREZ-VILLALPANDO v. HOLDER 5437

it is clear that the BIA considered . . . the evidence.” Wang,

437 F.3d at 275.

[6] The abstract of judgment states that Ramirez-

Villalpando was convicted of “GRAND THEFT OF PERS

PROPER” under California Penal Code § 487(a). Ramirez-

Villalpando argues, however, that the abstract of judgment

cannot be considered because this court barred reliance upon

an abstract of judgment to prove the nature of a prior convic-

tion in United States v. Navidad-Marcos, 367 F.3d 903 (9th

Cir. 2004). This argument is unpersuasive for two reasons.

First, the record in the current case is more explicit than

that in Navidad-Marcos. The defendant in Navidad-Marcos

was charged under § 11379 of the California Health and

Safety Code, which this court has concluded “punishes a full

range of conduct encompassed by the statute, which might not

constitute an aggravated felony.” Id. at 906. The government

argued that the description of the crime contained in the

abstract of judgment indicated that Navidad-Marcos pled

guilty specifically to the transportation and sale of a con-

trolled substance, which is an aggravated felony. Id. at 909.

We rejected the government’s argument, stating that it is

“equally plausible, if not more probable, that the abbreviation

in the form merely summarized the title of the statute of con-

viction rather than — as the government would have us pre-

sume — a conscious judicial narrowing of the charging

document.” Id. California Health and Safety Code § 11379 is

titled, “Transportation, sale, furnishing, etc.; punishment,”

and the abstract of judgment stated the crime as “Trans-

port/sell cont. sub.” Id. at 906. We thus held that the abstract

of judgment was “not sufficient to establish ‘unequivocally’

that Navidad-Marcos entered a guilty plea to a different

charge from the one contained in the Information.” Id. at 909.

[7] In contrast, the statute of conviction under which

Ramirez-Villalpando pled guilty is entitled “Grand theft

defined.” Cal. Pen. Code § 487(a). The description of the

5438 RAMIREZ-VILLALPANDO v. HOLDER

crime in the abstract of judgment specified “personal proper-

ty” from a list of potential crimes under § 487(a): “money,

labor, or real or personal property.” The crime described in

the abstract of judgment here may fairly be read as a summary

of Ramirez-Villalpando’s specific offense, not merely a reci-

tation of the title of the statute.

[8] Second, in later decisions we have clarified that

Navidad-Marcos held that the court “erred in relying only on

the abstract of judgment in determining that [a] prior offense

[satisfies the elements of a given generic crime] under the

modified categorical approach.” United States v. Narvaez-

Gomez, 489 F.3d 970, 977 (9th Cir. 2007) (emphasis added).

We have permitted reliance on an abstract of judgment in

combination with a charging document to establish that the

defendant pled guilty to a generic crime under the modified

categorical approach. See, e.g., United States v. Velasco-

Medina, 305 F.3d 839, 852-53 (9th Cir. 2002) (holding that

the abstract of judgment coupled with the information fur-

nished sufficient proof that the defendant was convicted of all

the elements of the generic crime of burglary). See also

Penuliar v. Mukasey, 528 F.3d 603, 610-11 (9th Cir. 2008)

(holding that the abstract of judgment may not sufficiently

establish that the defendant pled guilty to a specific crime

when the only other document provided was the charge,

which simply contained the generic, broad statutory lan-

guage); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 878 (9th

Cir. 2008) (holding that the abstract of judgment does not reli-

ably establish the content of the conviction when it was the

“only judicial record . . . the government produced.”).

[9] Here, the abstract of judgment listing the conviction as

“GRAND THEFT OF PERS PROPER” was corroborated by

the felony complaint listing count 1 as “the crime of GRAND

THEFT OF PERSONAL PROPERTY . . . to wit tires and

rims” and the plea transcript. Together, those documents

clearly and specifically demonstrated that Ramirez-

Villalpando pled guilty to the charge of grand theft of per-

RAMIREZ-VILLALPANDO v. HOLDER 5439

sonal property, an aggravated felony for removal purposes,

and not to a charge of theft of labor.1

Ramirez-Villalpando additionally argues that the felony

complaint is unreliable because it charged Ramirez-

Villalpando with grand theft of personal property under Cali-

fornia Penal Code § 487(a), as well as with receiving stolen

property under California Penal Code § 496(a). Section

496(a) states that “no person may be convicted both pursuant

to this section and of the theft of the same property.” Cal. Pen.

Code § 496(a). Indeed, California law prohibits dual convic-

tions for theft and receipt of the same property. See, e.g., Peo-

ple v. Love, 83 Cal. Rptr. 3d 428, 432 (Cal. Ct. App. 2008).

It is not clear from the record that Ramirez-Villalpando was

in fact convicted under both sections for taking and receiving

the same tires and rims. The two counts could have referred

to different items, albeit of the same kind. We cannot presume

a set of facts under which the conviction might be defective.

[10] Even if it were true that he was convicted for both

grand theft and receipt of the same personal property, the

validity of Ramirez-Villalpando’s grand theft conviction,

upon which the order of removal was based, is not properly

before us. A petitioner may not collaterally attack his state

court conviction on a petition for review of a BIA decision.

1

In United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008)

(en banc), we held that minute orders and “documents of equal reliability”

may be considered in determining whether a crime qualifies as a predicate

offense. The government has argued that Snellenberger authorizes us to

rely upon an abstract of judgment because an abstract is also “prepared by

a neutral officer of the court, and . . . the defendant had the right to exam-

ine and challenge its content.” See id. at 702. Because the record here con-

tained reliable corroboration, we do not in this case need to reach the

question of whether our en banc decision in Snellenberger overruled

Navidad-Marcos and permits reliance upon an abstract of judgment with-

out corroboration by other material in the record in applying the modified

categorical approach.

5440 RAMIREZ-VILLALPANDO v. HOLDER

See Resendiz v. Kovensky, 416 F.3d 952, 960 (9th Cir. 2005).

The BIA’s review concerned the question of whether

Ramirez-Villalpando’s conviction under California Penal

Code § 487(a) was a valid factual predicate for an aggravated

felony. Ramirez-Villalpando’s conviction was final for pur-

poses of the IJ’s removal determination and the BIA’s subse-

quent review. See Grageda v. INS, 12 F.3d 919, 921 (9th Cir.

1993) (“Once an alien has been convicted by a court of com-

petent jurisdiction and exhausted the direct appeals to which

he is entitled, his conviction is final for the purpose of the

immigration laws.”). Furthermore, “[a] conviction subject to

collateral attack or other modification is still final.” Id.

[11] Ramirez-Villalpando pled guilty to theft of personal

property under California Penal Code § 487(a), acknowledg-

ing that “a plea in this case will result in deportation, denial

of naturalization, denial of re-entry into this country, as well

as exclusion from admission.” His conviction was final as

presented to the BIA, and the question of its validity under

California law is not before us.

III. Conclusion

[12] The record clearly demonstrates that Ramirez-

Villalpando’s conviction under California Penal Code

§ 487(a) qualified as an aggravated felony under the modified

categorical approach. As a result, he is subject to removal

under INA § 237(a)(2)(A)(iii). 8 U.S.C. § 1127(a)(2)(A)(iii).

PETITION DENIED.