                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 22 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


INES SAUL VASQUEZ-GONZALEZ,                      No. 11-73775

              Petitioner,                        Agency No. A090-152-894

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted October 10, 2014**
                              San Francisco, California

Before: CANBY, W. FLETCHER, and WATFORD, Circuit Judges.

       Ines Vasquez-Gonzalez, a native and citizen of Mexico, petitions for review

of a decision of the Board of Immigration Appeals affirming an Immigration

Judge’s decision ordering Vasquez-Gonzalez to be removed to Mexico.

Vasquez–Gonzalez conceded removability but contends that the BIA erred in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
determining that he was ineligible for cancellation of removal because his Nevada

state-law conviction for attempted grand larceny of a motor vehicle constituted an

aggravated felony under the Immigration Act. We have jurisdiction pursuant to 8

U.S.C. § 1252. We review de novo the legal question of whether an offense is an

aggravated felony under 8 U.S.C. § 1101(a). Flores-Lopez v. Holder, 685 F.3d

857, 861 (9th Cir. 2012). We deny the petition for review.

      In 2007, Vasquez–Gonzalez, a lawful permanent resident of the United

States, was sentenced to 12 months in the Clark County Detention Center after he

pleaded guilty to attempted grand larceny of a motor vehicle under sections

193.330 and 205.228 of the Nevada Revised Statutes. The BIA determined that

attempted grand larceny “is categorically an aggravated felony attempt to commit a

theft offense under [the Immigration and Nationality] Act,” rendering

Vasquez–Gonzalez statutorily ineligible for cancellation of removal.

      To determine whether a state conviction qualifies as an aggravated felony

under federal law, we apply the categorical test set forth by the Supreme Court in

Taylor v. United States, 495 U.S. 575 (1990), which requires “a categorical

comparison of the elements of the state statute of conviction to the generic

definition of a theft offense.” Verdugo–Gonzalez v. Holder, 581 F.3d 1059, 1060

(9th Cir. 2009). As used in this context, the term “aggravated felony” includes


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“theft offense[s] . . . for which the term of imprisonment [is] at least one year.” 8

U.S.C. § 1101(a)(43)(G). This Circuit has generically defined a theft offense as

“[1] a taking of property or an exercise of control over property [2] without

consent [3] with the criminal intent to deprive the owner of rights and benefits of

ownership, even if such deprivation is less than total or permanent.” Carrillo-

Jaime v. Holder, 572 F.3d 747, 750 (9th Cir. 2009) (quoting United States v.

Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc)).

Vasquez–Gonzalez argues that a grand-larceny conviction under Nevada Revised

Statutes § 205.228 does not require that the defendant acted with an intent to

deprive and thus fails the categorical test. (He does not dispute that the crime of

attempt includes the element of intent to commit the attempted offense. See Nev.

Rev. Stat. § 193.330.)

      Section 205.228 of the Nevada Revised Statutes provides that a “person who

intentionally steals, takes and carries away, drives away or otherwise removes a

motor vehicle owned by another person commits grand larceny of a motor

vehicle.” Nev. Rev. Stat. § 205.228. We read this statute as requiring proof that

the accused intentionally stole and took the motor vehicle; only the element

“carries away, drives away, or otherwise removes” may be proved in the

alternative. Moreover, the Nevada Supreme Court has consistently acknowledged


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that the specific intent to deprive an owner of his or her property is an element of a

theft offense. See Grant v. State, 24 P.3d 761, 766 (Nev. 2001) (citing Nevada’s

statutory definition for grand larceny and concluding that the prosecution had

adduced sufficient evidence to support the requisite finding of intent to

permanently deprive owner of property); Harvey v. State, 375 P.2d 225, 226 (Nev.

1962) (“Nevada law is settled that, to constitute larceny, there must exist in the

mind of the perpetrator, at the time of the taking, the specific intent to permanently

deprive the owner of his property.”); see also Foreshee v. Runnels, No.

CIVS03-1647, 2007 WL 2505578, at *7 (E.D. Cal. Aug. 31, 2007) (“The Nevada

Supreme Court has long held that larceny requires an intent to permanently deprive

the owner of his or her property.”). In applying the categorical approach, “we

consider not only the language of the state statute, but the interpretation of that

language in [state] judicial opinions.” Ortega-Mendez v. Gonzales, 450 F.3d 1010,

1016 (9th Cir. 2006). Contrary to Vasquez-Gonzalez’s contention, none of the

above authorities is undermined by the fact that the Nevada legislature, in enacting

a different statute defining theft in 1989, specified an element of intent to

permanently deprive the owner of property. The decisions cited above both before

and after that enactment include the requisite intent element as inherent in larceny

or stealing.


                                           4
      Although Vasquez-Gonzalez does not raise the point, we note that Nevada

Revised Statutes § 205.228 also does not expressly require that the stealing and

taking be “without consent,” which is an element of generic theft. Here, too, the

element of lack of consent is inherent in the definition of larceny or stealing. We

have previously held that a showing that property is “stolen” is sufficient to

demonstrate a lack of the owner’s consent. Randhawa v. Ashcroft, 298 F.3d 1148,

1153–54 (9th Cir. 2002). Because § 205.228 requires proof of stealing, the

element of lack of consent is included and satisfied.

      To support a contrary interpretation, Vasquez-Gonzalez would have to

demonstrate “a realistic probability, not a theoretical possibility, that the State

could apply its statute to conduct that falls outside the generic definition of a

crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). He has made no

showing that there is a realistic possibility that a person could be found guilty of

violating § 205.228 when he had stolen and taken the property with the owner’s

consent.

      Accordingly, because a conviction under section 205.228 satisfies the

elements of intent and lack of consent of a generic theft offense and is otherwise no

broader than the generic theft offense, Vasquez–Gonzalez’s conviction

categorically qualifies as an aggravated felony under the INA. See Descamps v.


                                           5
United States, 133 S. Ct. 2276, 2283 (2013). Vasquez-Gonzalez’s petition for

review is DENIED.




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