Duenas-Alvarez v. Holder

A lawful permanent resident is removable for the offense of taking a vehicle without consent, in violation of California Vehicle Code § 10851(a), because it is considered a “theft offense” that qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43).

Luis Alexander Duenas-Alvarez, a lawful permanent resident, was convicted of taking a vehicle without consent in violation of California Vehicle Code § 10851(a). Duenas-Alvarez was found removable because he had been convicted of a theft offense “that qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43).” On appeal to the Ninth Circuit, the panel remanded the case because California Vehicle Code § 10851(a) “criminalizes aiding and abetting, which falls beyond the scope of a generic theft offense.” The Supreme Court granted certiorari, vacated the decision, and remanded. The panel stated that the issue before it was “whether the government proved that [Duenas-Alvarez] was convicted of a qualifying felony theft offense.” Duenas-Alvarez argued that he had not been because it was not clear that he had been “convicted as a principal, instead of as a mere accessory after the fact, under California Vehicle Code section 10851(a)” or “that he was convicted of an act more serious than joy-riding.” The panel noted that California Vehicle Code § 10851(a) was divisible because it “imposes criminal liability in the alternative on principals as well as on accessories after the fact.” Since the statute is divisible, the panel used the modified categorical approach when determining whether Duenas-Alvarez was convicted as a principal or as an accessory after the fact. After reviewing the order and abstract of judgment, the panel concluded that Duenas-Alvarez had been convicted as a principle. For Duenas-Alvarez’s second argument, the panel noted that it and the Board of Immigration Appeals defined a “theft offense” to include the taking of property, “even if the deprivation is less than total or permanent.” Thus, Duenas-Alvarez’s temporary taking of the vehicle was a theft offense. PETITION DENIED.