Pedro Jose Hernandez-Cruz v. Eric H. Holder Jr.
2011 U.S. App. LEXIS 13924
| 9th Cir. | 2011Background
- Hernandez-Cruz, a Guerrero Guatemalan LPR, was convicted twice of California second-degree burglary under § 459.
- The BIA found removability based on (i) an aggravated felony for a theft/burglary offense and (ii) two CIMTs not arising from a single scheme.
- First conviction (June 2006): pleads no contest to Count One (entering a commercial building with intent to commit larceny and any felony); 16 months’ imprisonment plus probation.
- Second conviction (November 2006): pleads guilty to similar burglary; 16 months’ imprisonment; sentences run concurrently; later paroled to ICE custody.
- IJ concluded convictions were not generic burglary but were treated as generic theft offenses and CIMTs, leading to removal findings.
- BIA reversed the IJ on some points, ultimately holding convictions were CIMTs and aggravated felonies; this petition challenged those determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are § 459 commercial burglary convictions generic attempted thefts? | Hernandez-Cruz contends § 459 does not map to generic attempted theft. | Government argues the convictions fit generic attempted theft under the modified categorical approach. | Not; § 459 is not generic attempted theft; convictions do not satisfy substantial step requirement. |
| Do Hernandez-Cruz's convictions constitute crimes involving moral turpitude? | Hernandez-Cruz argues the § 459 convictions do not match CIMT elements. | Government contends convictions, under record, are CIMTs. | Not CIMTs; the elements do not align with generic CIMT definitions; BIA erred. |
| May the agency look to underlying facts beyond the conviction elements to classify removability? | The government seeks to rely on underlying conduct to support removability. | ||
| The government argues underlying facts support aggravated felony/CIMT classification. | Court limits to elements (Shepard/Ngaeth framework); underlying facts cannot salvage the classifications here. | ||
| If the BIA erred on both aggravated felony and CIMT grounds, should the matter be remanded or resolved on the record as is? | Court should remand for proper analysis of the convictions. | No remand; BIA already addressed grounds; no other generic offenses argued. | Remand unnecessary; grant petition and vacate removal on the basis that classifications were incorrect. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (defines generic vs. specific offense comparison in INA context)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (modified categorical approach hinges on elements, not underlying facts)
- Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008) (applies categorical and modified categorical approaches to determine aggravated felonies)
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (defines generic theft offense elements for CIMT analysis)
- Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009) (articulates definition of generic theft offense for aggravated felonies)
- Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (distinguishes CIMT analysis for Washington burglary vs. California context)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (discusses deference in CIMT determinations and Silva-Trevino context)
- Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (analyzes fraud-based CIMTs and per se moral turpitude notions)
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (requires advising noncitizen defendants of immigration consequences of pleas)