                                                                            FILED
                            NOT FOR PUBLICATION                             APR 05 2016

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



                            FOR THE NINTH CIRCUIT


SAMER HADDAD,                                    No. 11-70674

              Petitioner,                        Agency No. A035-446-592

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

              Respondent.


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

                             Submitted April 5, 2016**
                               Pasadena, California

Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.

      Samer Haddad, a native and citizen of Germany, petitions for review of the

decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the

Immigration Judge’s (IJ) final order of removal. We have jurisdiction under 8

U.S.C. § 1252(a)(2)(D). We grant the petition.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The BIA erred as a matter of law when it applied the modified categorical

approach to conclude that Haddad’s conviction for petty theft with a prior

conviction, in violation of California Penal Code §§ 484(a) and 666, constituted an

aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(G); 1227(a)(2)(A)(iii). “‘[A]

petty theft conviction, under Cal. Penal Code §§ 484(a) and 666, is not a

categorical match to the federal definition of a theft offense.’” Lopez-Valencia v.

Lynch, 798 F.3d 863, 868 (9th Cir. 2015) (quoting United States v. Rivera, 658

F.3d 1073, 1077 (9th Cir. 2011)). Applying the framework set forth in Descamps

v. United States, 133 S. Ct. 2276 (2013), and Rendon v. Holder, 764 F.3d 1077 (9th

Cir. 2014), we recently held that “California’s theft statute is both overbroad and

indivisible[,]. . . [and] should not be subjected to the modified categorical

approach.” Id. at 871; see also Almanza–Arenas v. Lynch, No. 09–71415, 2015

WL 9462976, at *6 (9th Cir. Dec. 28, 2015) (en banc). Accordingly, “a California

conviction for theft is never an aggravated felony.” Lopez-Valencia, 798 F.3d at




                                           2
867. Because Haddad has not been convicted of an aggravated felony, the BIA

erred by finding Haddad removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).1

      Because Haddad is not removable as charged, we do not consider whether

the BIA abused its discretion by denying Haddad’s motion to remand to apply for a

waiver of inadmissibility under 8 U.S.C. § 1182(h). Nor do we consider Haddad’s

due process challenge.

      PETITION GRANTED.




      1
         The BIA alternatively found that Haddad was removable because he
sustained two convictions for crimes involving moral turpitude (CIMT) that are not
a part of a single scheme. See 8 U.S.C. § 1227(a)(2)(A)(ii). Relying on Cuevas-
Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), the BIA concluded that
Haddad’s felony burglary conviction, in violation of California Penal Code
§ 459, qualified as a CIMT. In its briefing on appeal, the government now
concedes that the BIA’s legal basis for determining that a § 459 violation qualified
as a CIMT was invalidated by our decision in Hernandez-Cruz v. Holder, 651 F.3d
1094 (9th Cir. 2011). The government also concedes that, even absent the BIA’s
misplaced reliance on Cuevas-Gaspar, the documents it submitted for application
of the modified categorical approach are insufficient to prove that Haddad’s
burglary conviction was a CIMT. We therefore do not consider the effect of
Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), and Almanza–Arenas v. Lynch,
No. 09–71415, 2015 WL 9462976 (9th Cir. Dec. 28, 2015) (en banc), if any, on the
BIA’s CIMT analysis.
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