*1 III 1396b(m) argues also that 42 AlohaCare HHS’s We hold does 1396b(m) not confer a federal regulations enforcing right demon to contract eligi- bility FQHCs, on and Congress intended to confer a AlohaCare has for- strate any arguments feited However, Suprema- under the FQHCs. on right eligibility cy Clause. “[p]laintiffs suing we have held that demonstrate that a 1983 must statute—(cid:127) judgment The of the district court is regulation not a an individual —confers AFFIRMED. Transit,
right.” Valley Save Our v. Sound (9th Cir.2003). Although 335 F.3d regulation may
“a be relevant in determin scope right of the conferred
Congress,” ultimately “the inquiry must squarely Congress’s
focus on intent.” Id. added).
(emphasis Because we have al
ready Congress concluded that not in did CARRILLO-JAIME, Reinaldo Otoniel right, to confer a federal
tend this “[i]n Carrillo, aka Reinaldo Reinaldo case, analysis begins our and ends with Carrillo, Petitioner, Otoniel Congress’s intent.” Id. at 944. C Jr., Attorney Eric H. HOLDER General, Respondent. argues, AlohaCare also for the appeal, first time on that it has association No. 06-74581. standing rights al to assert of its FQHC entity members. An United Appeals, associa States Court of “(a) Ninth standing tional where Circuit. its members standing would otherwise have to sue in Argued and Submitted Feb. (b) right; their own the interests it seeks protect to are germane organiza to the July Filed (c) purpose; tion’s neither the claim requested requires
asserted nor the relief participation of individual members Mink, Advocacy
the lawsuit.” Or. Ctr. v. (9th Cir.2003)
322 F.3d (quoting
Hunt v. Wash. State Apple Adver.
Comm’n, 333, 343, 432 U.S. 97 S.Ct. (1977)).
concluded that the Medicaid Act does not unambiguous right
confer an federal eligibility FQHCs,
contract on AlohaCare’s
appeal prong fails under the first of our
analysis. FQHC Because its members
could right, not sue their own Aloha- bring
Care cannot claims on their behalf. *2 a conviction under Cal. Veh.Code aggravated 10801 is not an felony theft
offense under fur-We *3 ther hold that the record is not sufficient § establish Carrillo-Jaime’s 10801 conviction an aggravated felony theft offense under the categorical modified ap- proach. grant petition We for review and remand to the BIA for pro- further ceedings. Portland, OR, Kari Hong, Elisabeth for petitioner. I. Background Hunolt, Arthur Gladys
James Marta Carrillo-Jaime, Salvador, a citizen of El Guzman, Yousif, Steffens Mona Maria was admitted to the United States as a Justice, Department United States permanent lawful resident June 1991. D.C., Washington, respondent. for the In August pled he guilty to receiving
stolen violation of Cal. Pen. 496(a) § Code and was sentenced to one year in prison. years Eleven-and-a-half later, in March he pled guilty to operating a chop shop in violation of Cal. NELSON, Before: D.W. W. § Veh.Code 10801 and was sentenced to FLETCHER and RICHARD C. years in prison. two TALLMAN, Judges. Circuit September In government charged Carrillo-Jaime with removability by Judge Concurrence TALLMAN. 1227(a)(2)(A)(i) § under 8 U.S.C. for being FLETCHER, WILLIAM A. Circuit convicted of a crime involving turpi- moral Judge: tude years committed within five after ad- mission, under 8 U.S.C. Petitioner Reinaldo Otoniel Carrillo- 1227(a)(2)(A)(ii) being for convicted of Jaime, a citizen of El Salvador and lawful involving two crimes turpitude any moral permanent States, resident of the United time after admission. The IJ ordered him pled guilty in violating 2005 to Section removed. Code, 10801 of the California Vehicle prohibits
which owning. operating a appeal, On the BIA held that Carrillo- “chop shop.” The government thereafter eligible Jaime was for waiver of his 1993 initiated removal proceedings. The Immi- conviction Immigration under and Natural- (“IJ”) gration Judge held that Carrillo- 212(c), ization Act Section 8 U.S.C. Jaime’s conviction under categori- 10801 1182(c) 1996). (repealed If that convic- cally qualified aggravated felony as an waived, tion were longer he would no be offense 8 removable only because his 2005 conviction and ordered him re- would remain. That crime was committed moved. The Board Immigration Ap- years more than five after Carrillo-Jaime’s (“BIA”) peals affirmed. admission. The BIA remanded to the IJ proceedings. further categorical approach We hold under the States, Taylor v. United remand, government U.S. On brought a (1990), 110 S.Ct. 109 L.Ed.2d charge against new Carrillo-Jaime based Corona-Sanchez, States Veh.Code United conviction under Cal. his 2005 on Cir.2002) (en banc) (9th charged that F.3d government The INS, him Hernandez-Mancilla (quoting removable conviction rendered this Cir.2001) (bracketed (7th 1227(a)(2)(A)(iii) 1002, 1004 because F.3d 8 U.S.C. added)), “aggravated superceded an on other a conviction for numbers it was 1101(a)(43)(G). n. 4 2L1.2 cmt. grounds under 8 U.S.C. U.S.S.G. felony” If a violation of 10801 satisfies held that Carrillo-Jaime’s The IJ elements, a theft three it constitutes these quali- § 10801 of Cal. Veh.Code violation offense under a theft offense under 8 categorically as fied *4 1101(a)(43)(G) him and ordered § provides: § Cal. Veh.Code not rule on Carrillo- The IJ did removed. and inten- Any knowingly who person 212(c) waiver request for a Section Jaime’s chop shop a is tionally operates owns or affirmed, The BIA 1993 conviction. of his and, upon a offense con- guilty public of for in petitioned review and Carrillo-Jaime viction, by imprison- punished shall be this court. two, three, prison in the state for ment years, by a fine of not more or four or II. of Review Standard ($50,000), fifty thousand dollars or than an of review de novo whether We imprisonment, the fine and or by both felony for aggravated constitutes an fense year county jail, in the or by up to one Cazarez- an alien is removable. which by a fine of not more than one thousand Ashcroft, 382 F.3d Gutierrez ($1,000), byor both the fine and dollars Cir.2004). (9th imprisonment. shop” “chop 250 defines Cal. Veh.Code
III. Discussion as Categorical A. Approach lot, premises or other any building, any person engaged where has been analyze Carrillo-Jaime’s convic- We first disassembling, altering, destroying, dis- § 10801 under tion under Cal. Veh.Code storing any or mantling, reassembling, categorical approach Taylor to de- part motor vehicle motor vehicle or under termine whether it is a theft offense theft, illegally by obtained known be 1101(a)(43)(G). fraud, conspiracy or to defraud.... of an “Any alien who is convicted clearly A violation of satisfies felony any at time after admis aggravated first third elements of “theft of- and deportable.” sion 8 U.S.C. 1101(a)(43)(G). fense” (in 1227(a)(2)(A)(iii). A “theft offense ... The first element is “exercise of control cluding receipt property) of stolen That satisfied imprisonment property.” at over element is [is] which the term of motor year” aggravated owning chop shop an because where least one constitutes “alter[ed], destroyed], disas- have de vehicles are felony. Id. We sembled], dismantled], reassembled], or fined “theft offense” necessarily possession of taking implies of proper stor[ed]” as “[1] vehicles, which, turn, necessarily those ty property or an exercise of control over [2] without consent[3] with the criminal implies exercising control over them. to an equivalent is of course deprive rights intent to the owner of and “[Possession of control.” Randhawa v. Ash- ownership, depri even if such exercise benefits (9th Cir.2002). 1148, 1153 permanent.” croft, than total or 298 F.3d vation is less Similarly, chop shop necessari- cle or operating part motor vehicle known to be ly implies “active involvement” in the ac- illegally obtained theft.” Neither and, therefore, exercis- tivities listed above “theft,” 10801 nor 250 defines so we People control the vehicles. over take the definition from gener- California’s Ramirez, Cal.App.4th 94 Cal. statute, al theft provides which in relevant Rptr.2d part: having The third element is the “crimi- Every person steal, who shall feloniously deprive rights nal intent to the owner of take, lead, carry, away or per- drive ownership.” and benefits of Section 10801 another, sonal or who shall “knowingly intentionally” criminalizes and fraudulently appropriate property which owning operating premises where her, has been him entrusted to property “known to illegally be obtained” shall knowingly designedly, who misidentified, is altered so that it will be any false or fraudulent representation or unidentifiable, or become be sold or other- pretense, any person defraud other disposed.
wise
conviction under
A
money, labor or real or personal proper-
requires
criminal intent. See Peo-
*5
ty, or who
procures
causes or
others to
ple Rodriguez,
at
Section 250 the property, subcategory prop- of California Vehicle indeed to a of Code, defining shop,” a “chop proscribes erty “any motor vehicle or motor vehicle — altering, “any destroying, part.” etc. motor vehi- consent, analytic from an of On the issue Code under Cal.Penal
Theft of embezzlement, of there are two kinds fraud: 484(a) “larceny, standpoint, includes in trick, pre false in fact and fraud the induce- by theft fraud the larceny by and Shannon, the two 66 Cal. The distinction between People v. ment. tenses.” fact, in fraud in the Cal.Rptr.2d follows: App.4th is as trick, larceny by and to consent “Larceny, fraudulently is induced victim taking X; another’s of perpetrator involve of act doing embezzlement to the pos X, the owner’s fraud, doing from act personal property guise in the session, Y; consent....” without the owner’s in the actually does act fraud Therefore, any a conviction for of these inducement, fraudulently Id. the victim is ele theft satisfies the nonconsent kinds of act X doing to the induced to consent § inment the fraud does perpetrator and the act X. commit
However,
pre
false
fact,
said,
has been
viti-
with the own
Fraud
it
may
accomplished
be
tenses
pretenses has
ates consent....
consent. Theft
false
er’s
“(1)
pretense
elements:
false
three
hand, fraud in the induce-
On the other
(2) the intent
to defraud
representation,
not vitiate consent....
“[T]he
ment does
(3)
property,
of his or her
the owner
that,
common law rule
unless
[is]
basic
mate
pretense
representation
false
to the con-
statutory language
there is
with the
rially
part
influenced the owner to
trary, whenever lack
consent
Levine,
People v.
2007 WL
property.”
crime,
necessary
element of
fact
*6
2007)
Dec.5,
(Cal.Ct.App.
4248775 at *10
through mis-
that consent is obtained
246,
Ashley, 42 Cal.2d
267
(citing People v.
supply
not
the essen-
representation will
(1954)).
271,
by false
P.2d
279
“Theft
nonconsent.”
tial element of
require
not
that the defen
pretenses does
Harris,
103,
Cal.App.3d
155
People v.
93
that
property;
requires
take the
it
dant
(1979)
472,
(quoting People
Cal.Rptr.
478
to induce
pretenses
false
the defendant use
Cook,
Cal.App.2d
Cal.Rptr.
39
228
property to him.”
give
the other to
the
(1964))
added,
(emphasis
brackets
804
Shannon,
at 179. The
Cal.Rptr.2d
78
original).
“to
must intend for the defendant
owner
unrestricted
become the unconditional and
by
pre
false
“One can commit
by
property
the
for it to be theft
owner” of
intentionally passes
he
tenses when
or she
Traster, 111
People v.
pretenses.
false
fraudulently
thereby
check and
ob
a bad
1377, Cal.Rptr.3d
687
Cal.App.4th
and title to merchan
possession
tains
”
*
(2003).
Chung,
....
2007 WL 1463455at 15
dise
omitted).
(citations
opera
If
or
the owner
gives property
If an owner
to someone
chop shop intentionally gives
a
the
that he
the un-
tor of
intending
or she become
owner,
a bad check in
takes
owner of a motor vehicle
person
conditional
then that
for the vehicle and then disas
exchange
the
consent.
property
with
owner’s
chop shop,
in the
at *15 sembles the vehicle
People Chung,
2007 WL -1463455
2007) (“[T]heft
This is
by
constitutes a violation of
May
(Cal.Ct.App.
in the inducement” under Harris.
fraudulently
“fraud
pretences
false
involves
[sic]
“misrepresentation
supply
will not
obtaining title with Because
taking possession and
nonconsent,”
owner.”).
element of
of the
Under Cali-
the essential
the consent
vitiated. 155
law,
consent has not been
person’s
pretenses
fornia
false
do owner’s
Cal.Rptr.
consent:
at 478.
necessarily
not
vitiate the owner’s
Ashcroft,
decision in
by
Our
Randhawa v.
ed
the owner in a mail box or some
(9th Cir.2002),
fraud
mail “from
We therefore conclude that one can com-
mail,
any
office,
or out of
post
or station
mit
theft of
pretenses
false
thereof,
box,
receptacle,
letter
mail
any
484(a)
CahPenal Code
with the
mail route or other authorized depository
consent of the owner.
matter,”
for mail
possessing any
as well as
question
mail so obtained. The
before us
Obtaining
Property by Fraud
was
whether
conviction under
law,
Under California
species
“fraud is a
categorically
constituted
theft offense
Sanchez,
of theft.” People v.
113 Cal.
that it
We held
App.4th
Cal.Rptr.3d
did:
Other than
484(a),
CahPenal Code
we
generic
Our
definition of theft offense
have not been
identify any
able to
Califor
also requires
[under
]
nia statute criminalizing
taking by
element, namely
second
the exer-
fraud of motor vehicles or motor vehicle
cise
control be without the true own-
parts.
er’s consent.
Again,
functionally
contains a
Theft
under CahPenal Code
equivalent requirement
gov-
because the
484(a)
includes the taking of property
ernment must show that the mail
inwas
through fraud.1 See CahPenal Code
stolen;
fact
shown,
once that fact is
it
484(a)
(“Every person ... who shall
also
been shown that
there could fraudulently appropriate property ... or
have been no consent to
possession
*7
who shall knowingly and designedly, by
by the true owner.
any false or
representation or
fraudulent
Despite
personal
property,
the fact that
or who
pro
1708 criminalizes
causes or
taking
bymail
or
cures
deception,
report falsely
fraud
we con-
others to
of his or her
cluded under the
wealth ...
categorical approach in
and ...
thus ... obtains credit
Randhawa that there could have
thereby
been no and
fraudulently gets or obtains
by
consent
the owner
possession
of the mail. At first
... property
...
guilty
is
blush,
theft.”)
may
this conclusion
added);
Sanchez,
seem inconsis-
(emphasis
6
cf
tent with our
by
conclusion that theft
Cal.Rptr.3d
false
at
(holding
278
that “a convic
(a
pretenses
species of fraud or deception)
tion
receiving
for
stolen property and a
under Cal. Veh.Code
10801 can be ac-
operating
conviction for
a chop shop would
complished with the consent of the
duplicative,”
owner. be
though
even
one could be
But
apparent inconsistency
the
disappears
convicted of the latter when vehicles are
as soon as one realizes that
exclusively
fraud);
1708 deals
obtained
through
Peo
with mail that
previously
deposit- ple
(Ct.
has
been
Rodriguez,
v.
754 consent of the 2004) § 10801 (same); Ngu- with People v. App. Nov. Dec. (Ct.App. 23002715 owner. yen, 2003 WL
2003) (same); Cal. People King, v. (2000) Cal.Rptr.2d 817 App.4th Summary Strohman, (same). People But see or motor vehi- Because a “motor vehicle Cal.Rptr.2d Cal.App.4th with the consent part” may be obtained (2000) through cle acquired (“[P]roperty fraud, theft, by by or fraud, not fall the owner example, would receiving proper- defraud, stolen we conclude that conspiracy the definition ty.”). qualify § 10801 does not conviction under 1101(a)(43)(G) theft as a categorically “fraud” under Cal. Veh.Code Because offense. Code based on CaLPenal 10801 is in the in- 484(a), includes fraud which ducement, analysis to the con- Categorical Approach relevant B. Modified to the anal- analogous of the owner is sent analyze next Carrillo-Jaime’s We therefore ysis previous in the section. We Veh.Code conviction under Cal. property can obtain conclude that one categorical approach. under the modified 484(a) with under CaLPenal Code fraud categori question The under the modified of the owner. the consent Carrillo-Jaime approach cal whether “actually was convicted” of each element of by Conspiracy Obtaining Property 1101(a)(43)(G) §a theft offense. Mar to Defraud Gonzales, 417 F.3d tinez-Perez operator may chop shop A owner (9th Cir.2005). by conspiracy to defraud property obtain presented no evi- government The First, ways. may he or she in at least two “any or motor dence that motor vehicle by fraud conspire to obtain the owner, directly in which case the part” from vehicle over which Carrillo-Jaime analysis previous fraud section owning operat- control while exercised Second, chop shop owner apply. would chop shop was obtained without may conspire proper- to obtain operator Consequently, gov- owner’s consent. ty consent of the owner order with the ernment has not established that Carrillo- example, For to defraud someone else. committed a Jaime shop operator may conspire owner or chop *8 categorical ap- offense under the modified an with the of a vehicle to defraud owner proach. company. opera- insurance The owner or a chop shop may tor of the obtain vehicle Conclusion from the owner with the owner’s consent. may make a The owner of the vehicle then that a We hold violation Cal. Veh. on company claim to the insurance based categorically quali- not Code 10801 does vehicle, may alleged
the
theft of his
fy
a theft offense under 8
as
U.S.C.
proceeds of the insurance
then share the
We further hold
opera-
company payout with the owner or
the record does not establish
Carrillo-
chop shop.
tor of the
constituted a
Jaime’s violation of
categori-
offense under the modified
can
therefore conclude that one
en-
We
grant
petition
the
approach.
in
cal
We
gage
conspiracy
a
to obtain
ing.
automobile,
to the BIA for further
The
review and remand
advent
how-
ever, created a
problem
new
with which
proceedings.2
the States found it difficult to deal. The
and REMANDED
GRANTED
uniquely
automobile was
to
suited
feloni-
taking
by larceny,
ous
whether
embez-
TALLMAN,
Judge, concurring:
Circuit
zlement or false pretenses.... The need
path
can follow a clear
and still be
One
for federal action increased with the
astray.
panel
faithfully ap-
led
The
number,
speed
distribution and
of the
plied
Taylor
our court’s
framework in
until,
motor vehicles
it became
holding
operating
chop
a conviction for
a
necessity.
The result
was
Nation-
shop under California Vehicle Code
al Motor Vehicle Theft Act.
aggravated felony.
10801 is not an
I
413-14,
Id. at
77 S.Ct. 352 U.S. at L.Ed.2d 430 S.Ct. 397. Supreme explained Congress’s Court ac- Congress later expanded the National tion in this arena: Motor passage Vehicle Theft Act with
By the law of most against States commonly referred to as developed local theft had so as to include Property National Stolen Act. See *9 States, only larceny 207, not common-law Dowling but embez- v. 473 United U.S. zlement, 218-20, pretenses, larceny by 3127, false 105 S.Ct. L.Ed.2d 152 trick, types wrongful and other of tak- provision encompassed This an brief, requested 2. In his Carrillo-Jaime closed that the IJ who heard the case has govern- we reassigned Immigration remand with instructions to the been to a different assign Consequently, ment to the case to a different IJ. At Court. Carrillo-Jaime’s re- argument, lawyer quest oral Carrillo-Jaime's dis- moot. is wrongfully-obtained au- that takes terprise theft activi- of criminal broader swath even them, tomobiles, and sells the dismantles goods of including transportation ty, market, the black “stolen, component parts on been converted known to have felony deportation fraud,” aggravated trav- not an transporting and taken consider- An odd result indeed purposes. “in the execu- commerce eling in interstate on ninety years legislation of federal artifice of a scheme or tion or concealment money ... this issue. person of to defraud 2314. property.” Act, Theft Motor Vehicle
The National Act, Turley Property and
National Stolen understanding that the federal
underscore offenses, particular in vehicle theft and
of offenses, fifty years for at least
theft
pretenses
false
included
THOMAS, Maricopa
Peyton
Andrew
itself,
Supreme
Taylor
In
fraud.
Attorney;
Arenivaz;
County
Lorenzo
Turley
highlight
on
to
Court relied
Willis;
Willis,
Timothy
Barbara
uniform national definitions
preference for
Plaintiffs-Appellants,
feder-
interpreting
state definitions
over
v.
States, 495
Taylor
al statutes.
v. United
595-96,
575, 591-92,
110 S.Ct.
U.S.
MUNDELL, Judge
Supe-
Barbara
of
(1990);
see United States
109 L.Ed.2d
Arizona; Carey Snyder
of
rior Court
(11th
Cure,
1136, 1140
Cir.
v.
996 F.2d
Hyatt, Judge
Superior
of the
Court
1993).
Tay-
approach
Yet our circuit’s
to
Anderson,
Arizona; Aimee
Commis-
analysis ignores
guide-
categorical
lor
Arizona;
sioner, Superior
Court
posts
in federal law.
found
Commissioner,
Nothwehr,
Richard
Su-
Arizona;
perior Court
Steven
today’s
step
Each
toward
result was
Lynch, Commissioner, Superior Court
originally sought Congress’s
clear. We
Arizona;
Blomo,
James T.
Commis-
by looking
of “theft offense”
meaning
Arizona,
sioner, Superior
De-
Court of
Taylor,
See
common state definitions.
fendants-Appellees.
2143;
U.S. at
110 S.Ct.
United States
CoronaSanchez,
291 F.3d
No. 07-15388.
(9th Cir.2002) (en banc). Next,
amal
we
Appeals,
United States Court of
the state definitions into our own
gamated
Ninth Circuit.
test for what
is a “theft offense.” See
CoronaSanchez,
(quoting
ute to our
nition to see which is broader. Taken
isolation, step process in this esoteric each quite logical. Unfortunately, we
appears our deci
never looked back to see whether guided by something be Con might
sion
gress itself had done. The result here is *10 en- engaging organized in an criminal