Rendon v. Holder

A state conviction will qualify as an aggravated felony, and render one ineligible for cancellation of removal, if it matches the comparable, generic federal statute under the “categorical approach,” or is divisible, under the “modified categorical approach,” in such a way that reveals alternative elements matching the comparable, generic federal statute.

Carlos Alberto Rendon was convicted of second-degree burglary under Section 459 of the California Penal Code. The Immigration and Naturalization Service ruled that this offense qualified as an aggravated offense under the definition in 8 U.S.C. § 1101(a)(43)(G). The Ninth Circuit held that because it was an aggravated felony, Rendon was subject to removal (8 U.S.C. § 1227(a)(2)(A)(iii)) and was ineligible for a cancellation of such removal (8 U.S.C. § 1229b(a)(3)). In order to determine if a state conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), it must “match” the comparative federal aggravated felony statute according to the “categorical approach.” This approach renders a state conviction as a “match” if it is equal to or narrower than the federal generic crime. On the other hand, if the state statute is broader than the federal statute, then it does not count as an aggravated felony, even if the defendant actually committed the violation under the federal rule. Section 459 convicts a broader range of conduct than the generic federal theft statute. However, the “modified categorical approach,” applied in Decamps v. United States, may qualify a broader state statute if it is divisible and reveals the conviction contains alternative elements that match the generic federal statute. Divisible statutes contain “alternative elements of functionally separate crimes,” whereas indivisible statutes do not contain alternative elements, but “may contain multiple alternative means of committing the crime.” Elements are those circumstances that a jury must unanimously agree; while means are those circumstances a jury can disagree on but still convict. Because the jury members could disagree as to whether Rendon intended to commit larceny, arson, rape, or any other felony, and still convict him under Section 459, the statute is indivisible and does not match the generic federal statute. PETITION GRANTED and REMANDED.