                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             OCT 30 2015
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
MAUREEN RIVERA,                                   No. 12-71693

              Petitioner,                         Agency No. A041-286-016

 v.
                                                  MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted September 15, 2015
                             San Francisco, California

Before: FLETCHER, BERZON, and BEA, Circuit Judges.

      Maureen Rivera, a lawful permanent resident, seeks review of the Board of

Immigration Appeals’ (BIA’s) order finding her removable and pretermitting her

application for cancellation of removal. We grant Rivera’s petition and remand her

case to the agency to determine, in the first instance, whether Rivera qualifies for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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cancellation in light of this panel’s disposition.

      Before the agency, Rivera conceded that she was removable on the basis of

two crimes involving moral turpitude: one count of grand theft under California

Penal Code (CPC) § 487(b)(3) and two counts of embezzlement under CPC §§ 508

and 487(a). Grand theft of property is an aggravated felony within the meaning of

8 U.S.C. § 1101(a). Because a conviction for an aggravated felony is a statutory

bar to a lawful permanent resident’s application for cancellation of removal, the

Immigration Judge (IJ) pretermitted Rivera’s application for cancellation.

Recognizing that only theft of property—and not theft of labor—may constitute an

aggravated felony, the IJ found that CPC § 487(b)(3) was divisible and thus subject

to the modified categorical approach. Because Rivera’s criminal information and

abstract of judgment confirm that she stole property and not labor, the IJ concluded

that Rivera had indeed been convicted of an aggravated felony, which foreclosed

her from seeking cancellation of removal. The IJ ordered Rivera removed to the

Philippines, and the BIA affirmed.

      Our intervening case law requires reversal of the BIA’s determination. In

Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), we held that California’s

theft statutes, like CPC § 487, are not only overbroad (because they criminalize

theft of labor in addition to theft of property)—but also indivisible (because the

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jury may convict without agreeing unanimously whether the defendant stole

property or labor). Id. at 868–70. California’s theft statutes like CPC § 487 are

therefore not susceptible to the modified categorical approach. Id. at 870. Thus,

regardless of the documents underlying her conviction, Rivera is not barred from

seeking cancellation of removal on the basis of her CPC § 487 conviction—an

indivisible offense. See Rendon v. Holder, 764 F.3d 1077, 1090 (9th Cir. 2014)

(en banc).

      Petition GRANTED and REMANDED.




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