*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252)
J UAN C. R , Nо. 08-72102 AKA Juan Carlos Ramirez, Agency No. Petitioner, (cid:253) A012-620-554 v. ORDER AND E RIC H. H OLDER Jr., Attorney AMENDED General, OPINION (cid:254) 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 Amended July 1, 2011 Before: J. Clifford Wallace, Procter Hug, Jr. and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
COUNSEL
Brett A. Shumate, Wiley Rein LLP, Washington, DC, for the petitioner.
Aimee J. Frederickson, U.S. Deрartment of Justice, Washing- ton, D.C., for the respondent.
ORDER
The opinion, appearing at
Delete the last part of the paragraph that starts on 601 F.3d at 896 and continues on page 897, such that the following sen- tences are removed:
The BIA’s review concerned the question of whether Ramirez-Villalpando’s conviction under California Penal Code § 487(a) was a vаlid factual predicate for an aggravated felony. Ramirez-Villalpando’s convic- tion was final for purposes of the IJ’s removal deter- mination and the BIA’s subsequent review. See *3 Grageda v. INS , 12 F.3d 919, 921 (9th Cir. 1993)
(“Once an alien has been convicted by a court of competent jurisdiction and exhausted the direct appeals to which he is entitled, his conviction is final for the purpose of the immigration laws.”). Further- more, “[a] conviction subject to collateral attack or other modification is still final.” Id .
The first part of the paragraph remains: Even if it were true that he was convicted for both grand theft and receipt of the same personal prop- erty, 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. See Resendiz v. Kovensky , 416 F.3d 952, 960 (9th Cir.2005).
With the opinion as amended, the panel voted to deny the petition for rehearing. Judge Clifton has voted to deny the petition for rehearing en banc, and Judges Wallace and Hug have recommended denial of the petition. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
Thе petition for rehearing and the petition for rehearing en banc, filed May 24, 2010, are DENIED. No further petitions for rehearing will be entertained.
*4 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 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 аrrested 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 *5 Statеs 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) оr 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 “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 оn 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.” *6 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
,
[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 U.S. 575 (1990). See United States v. Espinoza-Cano , 456 F.3d 1126, 1131 (9th Cir. 2006). We begin with thе 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). Ramirez-Villalpando was convicted of violating Cali-
fornia Penal Code § 487(a), whiсh 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 ownеr 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 includе theft of labor, California Penal Code § 487(a) encom- *7 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 fоr 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 thе 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
,
[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 dоes not mean, however, that our review may consider only evidence expressly identified in the BIA’s decision. The BIA’s decision in this case stated that “the convic-
tion record reflects that the respondent pled guilty to a charge
*8
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 rеfute
on the record each individual argument or piece of evidence
offered by the petitioner.”
Wang v. Board of Immigration
Appeals
,
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- tiоn 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 аrgued 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 probаble, that the abbreviation *9 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. Cоde § 487(a). The description of the 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. 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
,
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.”). 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 speсifically demonstrated that Ramirez- Villalpando pled guilty to the charge of grand theft of per- sonal property, an aggravated felony for removal purposes, and not to a charge of theft of labor.
Ramirez-Villalpando additionally argues that the felony complaint is unreliable because it charged Rаmirez- 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). Indeеd, 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). [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 оf 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 еn 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.
*11 It is not clear from the record that Ramirez-Villalpando was in fact convicted under both sections for taking and receiving thе 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-Villalpаndo’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.
See Resendiz v. Kovensky
,
[11] Ramirez-Villalpando pled guilty to theft of personal property under California Penal Cоde § 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 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.