U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Thompson, Nanya Yoshiko Morinaga OHS/ICE
Nanya Thompson Law, Inc. 606 S. Olive Street, 8th Floor
1446 Front St., Ste. 102 LOS ANGELES, CA 90014
San Diego, CA 92101

Name: H -C ,E J A 605

Date of this notice: 9/1/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
O'Connor, Blair
Wendtland, Linda S.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: E-J-H-C-, AXXX XXX 605 (BIA Sept. 1, 2017)


I

U.S. Department of Justice. Decision of the Board oflmmigration Appeals

'Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 605 - Los Angeles, CA Date: SEP - 1 2017

In re: E J HE -C

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Nanya Y. Thompson, Esquire

APPLICATION: Removability; cancellation of removal

,
The respondent appeals from the Immigration Judge s August 11, 2016, decision sustaining
the aggravated felony charge of removability and ordering him removed. The Department of
,
Homeland Security ("DHS ,) has not responded to the appeal. The appeal will be sustained, and
the record will be remanded.

We review findings of fact for clear error, including any credibility findings. See 8 C.F.R
1003.l(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R 1003.l(d)(3)(ii).

The respondent is a native and citizen of Mexico and a lawful permanent resident of the
United States. In August 2015, the respondent sustained a conviction for the unlawful taking and
driving of a vehicle, in violation of section 10851(a) of the California Vehicle Code, and was
,
sentenced to 16 months imprisonment (Exh. 2). The Immigration Judge found that the respondent
was removable as an alien convicted of an aggravated felony theft offense based on this conviction
(U at 2-3).1 See sections 237(a)(2)(A)(iii) and 101(a)(43)(G) of the Immigration and Nationality
Act, 8 U.S.C. 1227(a)(2)(A)(iii) and 1101(a)(43)(G). We disagree.

Section 1085l(a) of the California Vehicle Code provides as follows:

Any person who drives or takes a vehicle not his or her own, without the consent of the
owner thereof, and with intent either to permanently or temporarily deprive the owner
thereof of his or her title to or possession of the vehicle, whether with or without intent

1 The respondent also sustained a 2013 conviction for using or being under the influence of
methamphetamine, in violation of California Health & Safety Code 11550(a) (Exh. 2). Based
on this conviction, the Immigration Judge found that the respondent was removable as an alien
convicted of a controlled substance offense (U at 2; Tr. at 8, 16). See section 237(a)(2)(B)(i) of
the Act. Since the respondent does not challenge the determination that he is removable as an
alien convicted of a controlled substance offense, we deem that claim waived on appeal.
. See
Matter o/Z-Z-0-, 26 I&N Dec. 586, 586 n.l (BIA 2015).
Cite as: E-J-H-C-, AXXX XXX 605 (BIA Sept. 1, 2017)
 605

to steal the vehicle, or any person who is a party or an accessory to or an accomplice in

the driving or unauthorized taking or stealing, is guilty of a public offense . . . .

Cal. Veh. Code 10851(a). It is undisputed that section 10851(a) is broader than the generic theft
offense and not categorically an aggravated felony theft offense because it applies not only to
principals and accomplices, but also to accessories after the fact. See United States v.

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Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017); Duenas-Alvarez v. Holder, 733 F.3d 812,
814 (9th Cir. 2013); United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir. 2007). Thus, the
respondent's conviction cannot render him removable under section 237(a)(2)(A)(iii) of the Act
unless the DHS demonstrates that the statute is "divisible" and that consideration of the
respondent's conviction records would indicate that he was convicted as a principal, not as an
accessory after the fact.

In removal proceedings, we evaluate the divisibility of criminal statutes by employing the

standards set forth in Mathis v. United States, 136 S. Ct. 2243 (2016), in which the Supreme Court
further explained the "divisibility" analysis in Descamps v. United States, 133 S. Ct. 2276 (2013).
See Matter of Chairez, 26 l&N Dec. 819 (BIA 2016). Under Mathis, the divisibility of a statute
depends on whether the statutory alternatives are discrete "elements" as opposed to "means" of
committing an offense. Mathis v. United States, 136 S. Ct. at 2256. The elements of a crime are
those "constituent parts" of a crime's legal definition-the things that the "prosecution must prove
to sustain a conviction." Id at 2248; see also Rendon v. Holder, 764 F.3d 1077, 1086
(9th Cir. 2014) ("[T]he Supreme Court regards elements [of an offense] as those circumstances on
which the jury must unanimously agree."). Thus, the divisibility of section 1085l(a) depends
upon whether being a principal or accessory after the fact is an "element" of the offense or merely
a "brute fact" about which the jury can disagree while still rendering a guilty verdict. See
Mathis v. United States, 136 S. Ct. at 2248.

On its face, the language of section 1085l (a) does not specify whether being a principal or
accessory after the fact is an "element" of the offense or merely a means of committing the offense.
See Cal. Veh. Code 1085l(a). Furthermore, our research has identified no California case
squarely addressing this question. See United States v. Arriaga-Pinon, 852 F.3d at 1205 (Thomas,
C.J., concurring) (noting that "a jury need not agree that a defendant was either the accessory or
the principal" to find the defendant guilty under section 1085l(a)). In setting forth the elements
of section 10851(a), California case law does not include being a principal or accessory after the
fact. See, e.g., People v. Barrick, 654 P.2d 1243, 1255 (Cal. 1982) (holding that section 1085l(a)
"requires a driving or taking with the specific intent to deprive the owner permanently or
temporarily of title or possession of the automobile"); People v. James, 203 Cal. Rptr. 716, 719
(Cal. Ct. App. 1984).

The conclusion that section 10851(a) is indivisible is further reinforced by the respondent's
own record of conviction, at which we have "peek[ed] . . . for 'the sole and limited purpose"' of
determining whether being a principal or accessory after the fact is an element of the offense
(Exh. 2). See Mathis v. United States, 136 S. Ct. at 2256-57 (internal citation omitted). The
Am.ended Information to which the respondent entered his guilty plea describes the respondent
and a co-defendant as "unlawfully driv[ing] and tak[ing]" a certain vehicle (Exh. 2, Amended
Information at 4). Similarly, the abstract of judgment shows that the respondent pleaded guilty to

2
Cite as: E-J-H-C-, AXXX XXX 605 (BIA Sept. 1, 2017)
 605

"Unlawful Take & Drive Veh" (Exh. 2, Felony Abstract of Judgment). The United States Court
of Appeals for the Ninth Circuit has found that such language in the charging docwnent is
insufficient to show whether an individual was charged as a principal or an accessory after the fact.
See United States v. Arriaga-Pinon, 852 F.3d at 1200; United States v. Vidal, 504 F.3d at 1075.
As the respondent's record of conviction does not reference "one alternative to the exclusion of all
others," it is an indication that "each alternative is only a possible means of commission, not an

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element that the prosecutor must prove to a jury beyond a reasonable doubt." See
Mathis v. United States, 136 S. Ct. at 2257.

For the foregoing reasons, we agree with the respondent that his conviction for unlawfully
taking and driving a vehicle under section 10851(a) of the California Vehicle Code is overbroad
and indivisible relative to the definition of an aggravated felony theft offense and thus cannot serve
as a predicate for his removal under section 237(a)(2)(A)(iii) of the Act. 2 Likewise, the
respondent's 10851(a) conviction does not render him statutorily ineligible for cancellation of
removal. See section 240A(a)(3) of the Act, 8 U.S.C. 1229b(a)(3). Because the respondent is
removable under section 237(a)(2)(B)(i) of the Act, we will remand the record to the
Immigration Judge for consideration of the respondent's application for cancellation of removal.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, and the record is remanded for further proceedings
consistent with the foregoing opinion and for entry of a new decision.

FOR THE BOARD

2 Our conclusion that section 10851(a) is overbroad and indivisible with regard to the aggravated
felony theft offense definition is consistent with Judge Thomas' concurring opinion in
United States v. Arriaga-Pinon. 852 F.3d at 1201-1204 (Thomas, J., concurring) (concluding that
post-Mathis, the Ninth Circuit needs to re-examine the divisibility of section 10851(a), and
reasoning that such statute is overbroad and indivisible for federal sentencing purposes because a
California jury need not make any finding of fact with respect to whether the defendant was
convicted as a principal or accessory after the fact).

3
Cite as: E-J-H-C-, AXXX XXX 605 (BIA Sept. 1, 2017)
 'I

'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

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File: 605 August 11, 2016

In the Matter of

)
E J H -C ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: 237(a)(2)(A)(i) - has been convicted of an aggravated felony as

defined at 101 (a)(43)(G), a theft offense with the term of
imprisonment of at least one-year; and 237(a)(2)(B)(i) - has been
convicted of an offense relating to a controlled substance.

APPLICATIONS:

ON BEHALF OF RESPONDENT: NANYA THOMPSON

ON BEHALF OF OHS: PETER R. GLASGOW

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male, native and citizen of Mexico. Removal proceedings

were commenced with the issuance of a Notice to Appear dated February 8, 2016,

which has been marked and admitted as Exhibit 1. The respondent admitted

allegations 1, 2 and 3. In support of allegations 4, 5 and 6, that the respondent was

convicted on August 21, 2015 of violating Vehicle Code 10851, taking a vehicle without

consent, and December 20, 2013, under the influence of a controlled substance

1
identified as methamphetamine, the Government submitted a packet of documents

including prosecution on case SCN344800 including the abstract of judgement, the

minute orders and the charging document, the amended information. On the basis of

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those documents, the Court found the allegation 4 and 5. With regard to allegation 6,

that the respondent had been convicted of being under the influence of

methamphetamine, the Government submitted documents relating to case CN324209Z

including the plea agreement, the complaint showing the charges that were brought,

including Health and Safety Code 11550(a) identifying the substance as

methamphetamine. Other charges included possession of drug paraphernalia and

burglary tools. In support of allegation 6, the Court also was given the minute orders,

and the Court found that the respondent was convicted as alleged at number 6. Those

documents are collectively Exhibit 2.

Exhibit 3 is the respondent's application for cancellation of removal for lawful

permanent residents, a Form 42A, which has attached to it the respondent's criminal

history chart. Exhibit 4 is the respondent's application for asylum. Exhibit 6 is a

submission of items A-P. The respondent at a hearing on August 11 withdrew the

application for asylum and wanted to proceed only on the issue of challenging

removability. The Court at this time finds that case history in the Ninth Circuit with

regard to 10851 is clear that it is an aggravated felony if the sentence imposed is a year

or longer. It is a theft offense regardless of whether or not there is an intent to

permanently deprive or temporarily deprive the owner. With regard to whether or not he

was a principal or an accessory, the Court notes that the respondent's charging

documents under which he was prosecuted at the Collective Exhibit 2 allege that at

Count 5, he and his partner, who was also prosecuted, did unlawfully drive and take a

vehicle, personal property of Michael D., without consent and with the intent to

605 2 August 11, 2016

permanently or temporarily deprive the owner.

Therefore, there is no evidence that th t respondent was not a principal or that he

was an accessory after the fact.

I

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I
Therefore, the Court, at this time, finds ! that he is removable as an aggravated
i

felon. That the Government has met their burden. That the Government has

established that he was not an accessory, and that the sentence imposed makes him

an aggravated felon.

Therefore, the respondent is ordered removed.

Please see the next page for electronic

signature
LORRAINE J. MUNOZ
Immigration Judge

605 3 August 11, 2016

/Isl/

Immigration Judge LORRAINE J. MUNOZ

munozl on December 14, 2016 at 3:42 PM GMT

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605 4 August 11, 2016