On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-964-221
The opinion of the court was delivered by: Berzon, Circuit Judge:
Argued and Submitted May 3, 2011-Pasadena, California
Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Pedro Jose Hernandez-Cruz, a native and citizen of Guatemala, was convicted twice for second-degree commercial burglary, in violation of California Penal Code § 459. As a result, the Board of Immigration Appeals (BIA) found him removable as an alien convicted of an aggravated felony, and also as an alien convicted of two crimes involving moral turpitude (CIMTs). Hernandez-Cruz petitions for review, challenging the determinations that the prior convictions are grounds for removal.
The BIA held, first, that Hernandez-Cruz's two second-degree commercial burglary convictions were generic attempted theft offenses, qualifying each as an aggravated felony, and therefore as a ground for removal.*fn1 See 8 U.S.C. § 1227(a)(2)(A)(iii). Noting that the two elements of a generic attempted theft offense are an intent to commit a theft offense and an overt act constituting a substantial step toward the completion of that offense, the BIA employed the modified categorical approach and held that Hernandez-Cruz necessarily admitted both when he pleaded guilty in each instance to "enter[ing] a commercial building . . . with the intent to commit larceny and any felony." According to the BIA, the "sub- stantial step" that Hernandez-Cruz necessarily admitted was "entering the building where the property sought to be stolen was located." Second, the BIA held that the two commercial burglary convictions were CIMTs under Ninth Circuit precedent, providing an alternate ground for Hernandez-Cruz's removal. See 8 U.S.C. § 1227(a)(2)(A)(ii).
Simply entering a commercial building, however, is not in itself a "substantial step" supporting attempted theft liability. The BIA thus erred in holding that Hernandez-Cruz's convictions are generic attempted theft offenses. Similarly, the BIA erred in concluding that the convictions qualified as CIMTs, either because it misapprehended the elements of the crime of conviction or because it misread our caselaw. We therefore grant the petition for review.
FACTUAL AND PROCEDURAL HISTORY
Hernandez-Cruz is 52 years old. He has been lawfully and continually present in the United States for thirty years and a lawful permanent resident (LPR) for twenty. The Govern-ment's efforts to remove Hernandez-Cruz are based on two convictions for second-degree burglary under § 459 of the California Penal Code, which provides in relevant part that "[e]very person who enters any . . . shop, . . . store, . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."*fn2
On June 15, 2006, Hernandez-Cruz entered a Los Angeles supermarket during normal business hours, placed three cases of beer (retail value: $42.62) in a shopping cart, and pushed the cart out of the store without paying. The supermarket's security guard confronted Hernandez-Cruz in the parking lot and held him until the police arrived. Hernandez-Cruz was subsequently charged in a two-count felony complaint. Count One of the complaint alleged:
On or about June 15, 2006, in the County of Los Angeles, the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE SECTION 459, a Felony, was committed by PEDRO HERNANDEZCRUZ, [sic] who did enter a commercial building occupied by NORTHGATE SUPERMARKET with the intent to commit larceny and any felony.
Count Two charged "petty theft with priors" in violation of California Penal Code § 666, which provides for a harsher maximum sentence for petty theft if the defendant previously served a term of imprisonment for a theft offense. As part of a plea bargain, Hernandez-Cruz pleaded no contest*fn3 to Count One, and his attorney agreed to "stipulate to a factual basis based on the police report."*fn4 In exchange, Count Two, the theft charge, was dismissed, and the imposition of Hernandez-Cruz's sentence on Count One was suspended pending the successful completion of three years' probation.
About five months later, Hernandez-Cruz was arrested for walking out of a different supermarket with $68.46 in food items he had not paid for. Hernandez-Cruz was again charged in a two-count felony complaint, the first count of which alleged as follows:
On or about November 15, 2006, in the County of Los Angeles, the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE SECTION 459, a Felony, was committed by PEDRO JOSECRUZ [sic] HERNANDEZ, who did enter a commercial building occupied by FOOD 4 LESS with the intent to commit larceny and any felony.
Pursuant to a plea agreement, Hernandez-Cruz pleaded guilty to Count One and was sentenced to 16 months' imprisonment. His attorney again stipulated that the police report provided a factual basis for the plea. A second count, which, like the complaint in the earlier case, alleged petty theft with priors, was dismissed. At the same hearing, Hernandez-Cruz was found to be in violation of his probation on the June 2006 offense. His probation was revoked, and he was sentenced to 16 months' imprisonment for the earlier conviction, to run concurrently with the 16 months he would serve for the later one.
Hernandez-Cruz was paroled on July 26, 2007, but released to the custody of Immigration and Customs Enforcement (ICE). He was denied immigration bond and so remains in immigration detention.
ICE served Hernandez-Cruz with a Notice to Appear, charging him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii)*fn5 as an alien convicted of the aggravated felony of a theft or burglary offense, as defined in 8 U.S.C. § 1101(a)(43)(G).*fn6 This charge of removability was based on the conviction for the November 2006 offense.
Hernandez-Cruz appeared in immigration court for the first time about a week later. At that hearing, the Government lodged a second charge of removability, this one under 8 U.S.C. § 1227(a)(2)(A)(ii),*fn7 alleging that Hernandez-Cruz was removable because he was convicted of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct-to wit, the two separate California commercial burglary offenses. The Immigration Judge (IJ) explained the charges to Hernandez-Cruz and asked him if he would like additional time to find an attorney; when he said that he would, the IJ continued the hearing.
Hernandez-Cruz appeared for his next hearing on December 17, 2007, and stated that he would proceed without an attorney. After Hernandez-Cruz admitted the Government's factual allegations-in particular, that he was convicted of second-degree burglary for each of the two offenses-the IJ examined the records submitted by the Government to determine whether the convictions constituted aggravated felonies and/or CIMTs.*fn8 On the basis of those records, the IJ determined that the convictions were not generic burglary offenses, as California's burglary statute does not require the entry to be either unlawful or unprivileged, whereas the federal generic definition does. See Taylor, 495 U.S. at 599. The IJ proceeded to hold, however, that the police reports demonstrated that the convictions qualified as generic theft offenses. That determination, coupled with the fact that Hernandez-Cruz was sentenced to more than a year for each conviction, led the IJ to conclude that his convictions were for aggravated felonies. The IJ made no specific finding with regard to the Government's allegation that the convictions also constituted CIMTs but ordered Hernandez-Cruz removed on that basis as well.
On appeal, the BIA reversed. The BIA noted that although the definition of a generic theft offense, as provided in Arteaga v. Mukasey, 511 F.3d 940, 947 (9th Cir. 2007), requires as an element the taking of property, the statute of conviction, California Penal Code § 459, has no such element. Accordingly, the BIA held, a conviction under § 459 is not a generic theft offense. The BIA stated in a footnote, however, that "[u]nder the modified categorical approach, [Hernandez-Cruz's] offense might have been chargeable as an attempted theft. But no such ...