The petitioner, Martinez – a native and citizen of Mexico, was admitted to the United States in 1981 as an immigrant. In 1996 he has committed robbery in violation of the California Penal Code. As of investigation of the crime, he had willfully, unlawfully, and by means of force and fear misappropriated personal property from other person, thereafter , he was found guilty of grand and was sentenced to two years confinement. In 2001, the Immigration and Naturalization Service (“INS”) served Martinez with a Notice to Appear, charging that Martinez was subject to removal under 8 U.S.C. § 1227(a)(2) (A)(iii), based on his conviction for grand theft, which the INS alleged constituted an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G).
The US Court of Appeals granted the petition for review.
According to 8 U.S.C.S. § 1101(a)(43)(G) “aggravated felony” includes theft and burglary offenses. To determine whether an offense qualifies as an aggravated felony, the court should conduct a categorical comparison of the statute and the generic definition. In absence of categorical match, the court has to apply a modified categorical approach to determine whether the defendant actually was convicted of each the elements of the generically defined crime.
Whether the Board of Immigration Appeal erred in determining that petitioner was removable for having committed an aggravated felony
The US Court of Appeals concluded, first, that Cal. Penal Code § 487(c) (2003), which set forth the offense of grand theft, criminalized conduct was not a theft offense under the categorical approach set forth by the U.S. Supreme Court in Taylor v. United States. Second, based on the abstract of judgment of petitioner’s prior conviction, the court also concluded that the conviction did not qualify as a generic theft offense under the modified categorical approach approved by Taylor v. United States. The court determined that “it was unclear from the record of the prior conviction whether petitioner pleaded guilty to all the elements of a generic theft offense. Because the record did not establish that petitioner’s conviction for grand theft constituted a generic theft offense, under either the categorical or modified categorical approach, and thus qualified as an aggravated felony under 8 U.S.C.S. § 1101(a)(43), the IJ and the BIA erred in determining that petitioner was removable for having committed an aggravated felony.”