Roberto Lopez Valencia v. Loretta E. Lynch
2015 U.S. App. LEXIS 14410
| 9th Cir. | 2015Background
- Lopez-Valencia, a lawful permanent resident, pleaded nolo contendere in 2004 to petty theft under California Penal Code § 484 (charged under § 666 due to prior convictions) and later had additional state convictions; immigration authorities initiated removal proceedings after a subsequent conviction.
- The Board of Immigration Appeals held the § 484 theft conviction qualified as an “aggravated felony” because it was a “theft offense” under 8 U.S.C. § 1101(a)(43)(G), rendering Lopez-Valencia removable.
- The Ninth Circuit panel reviewed whether a California theft conviction categorically matches the federal “generic theft offense.”
- Applying the Descamps framework and this circuit’s Rendon clarification, the court assessed (1) categorical match, (2) divisibility of the state statute, and (3) whether the modified categorical approach could be applied.
- The court concluded California’s theft statute is overbroad (criminalizes conduct outside the federal generic theft definition) and indivisible (jury unanimity not required on the mode of theft), so the modified categorical approach is unavailable.
- The panel granted the petition, held that a conviction under Cal. Penal Code § 484 can never be a “theft offense” for § 1101(a)(43)(G) purposes, and remanded to the BIA to consider alternate removal grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a California § 484 conviction is a “theft offense” under 8 U.S.C. § 1101(a)(43)(G) | Lopez-Valencia: § 484 is overbroad and thus does not categorically match the federal generic theft definition | Government: § 484 can qualify in some cases; prior Ninth Circuit precedent allowed case-by-case inquiries | Held: § 484 is categorically not a federal "theft offense" because it is overbroad and indivisible; cannot qualify as an aggravated felony |
| Whether the modified categorical approach may be used for § 484 convictions | Lopez-Valencia: Descamps and Rendon bar application because the statute is indivisible | Government: Court may consult charging/conviction documents to identify the specific theory and apply the modified approach | Held: The statute is indivisible (no jury unanimity on mode of theft); Descamps forbids the modified categorical approach for indivisible statutes |
| Whether the court should adopt a case-specific ‘‘fourth step’’ (consult charging documents when statute is indivisible) | Lopez-Valencia: Such a fact-based detour reintroduces the abrogated Aguila‑Montes factual inquiry and is unfair to defendants | Government: Charging documents and jury instructions can show the particular theory, allowing relief to the government in many cases | Held: Rejected; permitting that approach would convert an elements inquiry into an evidence inquiry and risk unfairness; no fourth step adopted |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of the modified categorical approach to divisible statutes listing alternative elements)
- Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (clarifies divisibility hinges on jury unanimity about the element in question)
- United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011) (pre-Descamps Ninth Circuit holding that sometimes allowed modified categorical review for CA theft convictions)
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach for prior-offense matching)
- Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009) (earlier Ninth Circuit discussion on California theft statute overbreadth)