Duenas-Alvarez v. Holder
2013 U.S. App. LEXIS 17289
| 9th Cir. | 2013Background
- Duenas-Alvarez is a Peruvian native who entered the U.S. in 1990 and became a lawful permanent resident in 1998.
- In 2002 he was convicted of taking a vehicle in violation of California Vehicle Code § 10851(a).
- Removal proceedings followed; IJ and BIA found him removable as having committed a theft offense that qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43).
- This court previously remanded for a misclassification of § 10851(a) as a theft offense; the Supreme Court vacated and remanded, and the current decision denies the petition.
- California § 10851(a) is a divisible statute, applying to principals and accessories; the court uses the modified categorical approach to determine whether Duenas-Alvarez was convicted as a principal.
- Count 1 of the information charged Duenas-Alvarez as a principal who drove or took a vehicle without consent; abstract of judgment shows a guilty plea to Count 1 (auto theft) with a three-year sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Duenas-Alvarez was convicted as a principal or an accessory. | Duenas-Alvarez argues he may have been convicted as an accessory after the fact. | Gonzales argues the record shows principal conviction under a divisible statute. | Convicted as a principal under the modified categorical approach. |
| Whether § 10851(a) is a categorically defined theft offense for immigration purposes. | The offense may involve temporary taking (joy-riding) not always theft. | The BIA and Ninth Circuit define theft offense to include taking without consent with intent to deprive, even if temporary. | Petitioner’s argument foreclosed by binding precedent. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach for divisible statutes; matching elements to generic offense)
- Snellenberger v. United States, 548 F.3d 699 (9th Cir. 2008) (en banc per curiam; authority for looking at minute orders/abstracts)
- Valdavinos-Torres v. United States, 704 F.3d 679 (9th Cir. 2012) (use of charging papers with other documents to determine plea to aggravated felony)
- Corona-Sanchez v. United States, 291 F.3d 1201 (9th Cir. 2002) (defining theft offense to include taking without consent with intent to deprive)
- Duenas-Alvarez v. Gonzales, 549 U.S. 183 (2007) (Supreme Court remand; guidance on divisible statute interpretation)