                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SERGIO MARTINEZ-PEREZ,                             No. 03-70531
                             Petitioner,
                                                     Agency No.
                    v.
                                                   A36-908-119
ALBERTO R. GONZALES,* Attorney
                                                    AMENDED
General,
                                                      OPINION
                     Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                  Argued and Submitted
           November 3, 2004—Pasadena, California

                     Filed December 29, 2004

          Opinion Withdrawn and Amended Opinion
                   Filed August 2, 2005

    Before: A. Wallace Tashima, Raymond C. Fisher, and
             Richard C. Tallman, Circuit Judges.

                    Opinion by Judge Tashima




  *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).

                                 9023
9026             MARTINEZ-PEREZ v. GONZALES


                         COUNSEL

Frank E. Ronzio, Los Angeles, California, for the petitioner.

David E. Dauenheimer, Civil Division, U.S. Department of
Justice, Washington, DC, for the respondent.


                         OPINION

TASHIMA, Circuit Judge:

   Sergio Martinez-Perez (“Martinez”) petitions for review of
the Board of Immigration Appeal’s (“BIA”) order affirming
the Immigration Judge’s (“IJ”) decision that he is removable
and ineligible for any form of relief because of his conviction
                 MARTINEZ-PEREZ v. GONZALES                9027
for an aggravated felony under 8 U.S.C. § 1101(a)(43)(G).
For the reasons stated below, we conclude, first, that § 487(c)
of the California Penal Code, which sets forth the offense of
grand theft, criminalizes conduct that falls outside the generic
definition of theft, as established in United States v. Corona-
Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); therefore,
that § 487(c) is not a theft offense under the categorical
approach set forth by the Supreme Court in Taylor v. United
States, 495 U.S. 575 (1990). Second, based on our review of
the criminal information and abstract of judgment of Marti-
nez’s prior conviction, we also conclude that the conviction
does not qualify as a generic theft offense under the modified
categorical approach approved by Taylor.

   Although, under 8 U.S.C. § 1252(a)(2)(C), we lack juris-
diction to review a final order of removal against an alien who
is removable based on his conviction for an aggravated fel-
ony, we retain jurisdiction to determine whether Martinez’s
offense qualifies as an aggravated felony. See Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 885 (9th Cir. 2003);
Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir. 2002)
(observing that the court retains jurisdiction to determine
whether the jurisdictional bar of 8 U.S.C. § 1252(a)(2)
applies). We conclude that the BIA erred in determining that
Martinez’s prior conviction qualifies as an aggravated felony
and therefore grant the petition for review.

                         Background

   Martinez is a native and citizen of Mexico, and was admit-
ted to the United States in 1981 as an immigrant. In 1996,
Martinez was charged in state court with second degree rob-
bery, in violation of § 211 of the California Penal Code. The
information alleged that Martinez “willfully, unlawfully, and
by means of force and fear [took] personal property from the
person, possession, and immediate presence of Teresa Gut-
tierrez.” Martinez pled guilty to one count of grand theft
based on taking property from another, in violation of
9028                MARTINEZ-PEREZ v. GONZALES
§ 487(c) of the California Penal Code, and was sentenced to
two years confinement.

   In 2001, the Immigration and Naturalization Service (“INS”)1
served Martinez with a Notice to Appear, charging that Marti-
nez 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 IJ concluded at Martinez’s
removal hearing that his conviction was a theft offense for
which a sentence of one year or more had been imposed and
therefore constituted an aggravated felony under
§ 1101(a)(43). The IJ further found that Martinez was ineligi-
ble for any relief from removal and ordered Martinez
removed.

   Martinez then appealed to the BIA, arguing that a grand
theft conviction under § 487(c) of the California Penal Code
does not constitute an aggravated felony. The BIA affirmed
the IJ’s decision without opinion, pursuant to the streamlining
procedures formerly set forth at 8 C.F.R. § 3.1(e)(4).2 Marti-
nez timely filed a petition for review.

                       Standard of Review

  When the BIA affirms the IJ’s decision without opinion, we
review the IJ’s decision “as though it were the Board’s.”
Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1096 (9th Cir.
2004) (quoting Wang v. INS, 352 F.3d 1250, 1253 (9th Cir.
2003)). Whether an offense is an aggravated felony under 8
U.S.C. § 1101(a) is a legal question reviewed de novo.
  1
    The INS has since been abolished and its functions transferred to the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. For
convenience, we refer to the government agency involved as the INS.
  2
    The streamlining regulation has since been recodified without change
as 8 C.F.R. § 1003.1(e)(4) (2004).
                  MARTINEZ-PEREZ v. GONZALES                9029
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.
2004).

                            Analysis

   Under 8 U.S.C. § 1101(a)(43)(G), the term “aggravated fel-
ony” includes a “theft offense (including receipt of stolen
property) or burglary offense for which the term of imprison-
ment [is] at least one year[.]” Id. To determine whether an
offense qualifies as an aggravated felony, we compare the ele-
ments of the statute under which the person was convicted to
the definition of aggravated felony in § 1101(a)(43). Rand-
hawa, 298 F.3d at 1152. We first conduct a categorical com-
parison of the statute and the generic definition. Huerta-
Guevara, 321 F.3d at 886-87. If there is no categorical match,
we then apply a modified categorical approach to determine
whether the defendant actually was convicted of each the ele-
ments of the generically defined crime. Id. at 887; Randhawa,
298 F.3d at 1152.

I.   Categorical Approach

   [1] Under the categorical approach, an offense is an aggra-
vated felony “if and only if the ‘full range of conduct’ cov-
ered by [the criminal statute] falls within the meaning of that
term.” Randhawa, 298 F.3d at 1152 (quoting United States v.
Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)); Taylor,
495 U.S. at 602. We look only to the fact of conviction and
the statutory definition of the offense in determining whether
the conduct proscribed by the statute is categorically broader
than the generic definition. Huerta-Guevara, 321 F.3d at 887
(citing Corona-Sanchez, 291 F.3d at 1203). The generic defi-
nition of “theft offense” as it is used in § 1101(a)(43)(G) is “a
taking of property or an exercise of control over property
without consent with the criminal intent to deprive the owner
of rights and benefits of ownership, even if such deprivation
is less than total or permanent.” Corona-Sanchez, 291 F.3d at
1205.
9030              MARTINEZ-PEREZ v. GONZALES
   In Corona-Sanchez, we applied the categorical approach to
compare the definition of theft under § 484(a) of the Califor-
nia Penal Code to the generic definition of “theft offense” as
used in § 1101(a)(43)(G). See id. at 1207-08. We observed
that § 484(a) “allows a conviction for theft when the defen-
dant has neither taken, nor exercised control over, the proper-
ty.” Id. at 1207(noting that a defendant can be convicted of
the substantive offense of violating § 484(a) for aiding and
abetting a theft, for theft of labor, and for solicitation of false
credit reporting). We concluded that a conviction for theft
under § 484(a) does not qualify as an aggravated felony under
§ 1101(a)(43)(G) for federal sentencing purposes under the
categorical approach. Id. at 1208.

   [2] Here, Martinez was convicted of grand theft under
§ 487(c) of the California Penal Code. Section 487 is entitled
“Grand theft defined” and states that “[g]rand theft is theft
committed in any of” the situations enumerated in the statute.
Cal. Penal Code § 487 (West 2003). Section 487(c) provides
that grand theft is theft committed “[w]hen the property is
taken from the person of another.” Cal. Penal Code § 487(c)
(West 2003). Thus, § 487 defines grand theft by reference to
§ 484(a), the general theft statute, the violation of which we
held is not categorically a theft offense under
§ 1101(a)(43)(G). See Corona-Sanchez, 291 F.3d at 1208.

   But even though § 487(c) defines grand theft by reference
to “theft” as defined in § 484(a), the full range of conduct pro-
scribed by § 487(c) may nevertheless fall within the generic
definition of theft offense. We therefore must compare the rel-
evant elements of the generic definition of theft offense —
namely (1) the intent to deprive the owner of rights and bene-
fits of ownership, and (2) the taking of property — with the
conduct proscribed by § 487(c).

  A. Intent to Deprive Owner of Rights and Benefits of
  Ownership

  [3] California case law has interpreted § 487 as
“[n]ecessarily requir[ing] a finding that the accused intended
                  MARTINEZ-PEREZ v. GONZALES                 9031
to steal.” People v. Jaramillo, 548 P.2d 706, 709 (Cal. 1976)
(en banc); see People v. Davis, 965 P.2d 1165, 1167-68 (Cal.
1998) (“The intent to steal . . . is the intent, without a good
faith claim of right, to permanently deprive the owner of pos-
session.”); People v. Campbell, 133 Cal. Rptr. 815, 824 (Ct.
App. 1976); cf. United States v. Perez-Corona, 295 F.3d 996,
1001 (9th Cir. 2002) (concluding that, because case law inter-
preting the state criminal statute required only knowledge, the
conduct proscribed by the statute fell outside the definition of
theft offense, which requires intent to deprive the owner of
property). Further, the California Supreme Court has inter-
preted § 484(a) — the general theft statute to which § 487
refers in defining grand theft — as itself requiring the intent
to permanently deprive the owner of possession. See Davis,
965 P.2d at 1167-68 (stating the general rule that intent to
steal is required for conviction under § 484). Therefore, just
as the generic definition of theft offense requires “intent to
deprive the owner of rights and benefits of ownership,”
Corona-Sanchez, 291 F.3d at 1205, § 487(c) allows for con-
viction only where the defendant had an intent to deprive the
owner of possession. Section 487(c) thus does not fail the cat-
egorical test based on any lack of the requisite intent.

  B. Taking of Property or Exercise of Control Over
  Property

   We concluded in Corona-Sanchez that § 484(a) of the Cali-
fornia Penal Code proscribes conduct that falls outside the
definition of a theft offense, in part because the statute “al-
lows a conviction for theft when a person has neither taken,
nor exercised control over, property.” Corona-Sanchez, 291
F.3d at 1208. We noted that § 484(a) prohibits the theft of
labor and the solicitation of false credit reporting. See id. at
1207-08. In contrast, the definition of grand theft in § 487(c)
proscribes only the taking of property and therefore excludes
the theft of labor and the solicitation of false credit reporting.
Cal. Penal Code § 487(c) (West 2003) (“When the property is
taken from the person of another.”); id. at 1208. Thus, setting
9032             MARTINEZ-PEREZ v. GONZALES
aside aiding and abetting liability, the conduct prohibited by
§ 487(c) falls within the generic definition of theft offense
because § 487(c) requires “a taking of property or an exercise
of control over property.” See id. at 1205.

   At the same time, however, we also reasoned in Corona-
Sanchez that a defendant could be convicted of violating
§ 484(a) for aiding and abetting a theft and noted that aiding
and abetting liability in California “is quite broad, extending
even to promotion and instigation.” Id. at 1208-09. We
explained that, because a conviction under § 484(a) could be
based on an aiding and abetting theory, “it would not be
apparent from reference to the statute of conviction alone to
discern whether or not the criminal act was embraced within
the” generic definition of theft offense. Id. at 1208.

   [4] Here, just as a defendant can be convicted of the sub-
stantive offense of theft under § 484(a) for merely aiding and
abetting a theft, it appears that a defendant also can be con-
victed of the substantive offense of grand theft person under
§ 487(c) based on an aiding and abetting theory. See People
v. Beeman, 674 P.2d 1318, 1325-26 (Cal. 1984) (en banc)
(holding that defendant is liable under aiding and abetting the-
ory if he “act[ed] with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of com-
mitting, or of encouraging or facilitating commission of, the
offense”); People v. Melendez, 274 Cal. Rptr. 599, 602 (Ct.
App. 1990) (discussing jury instructions explaining aiding and
abetting theory on which grand theft conviction could be
based). See also People v. Mitchell, 228 Cal. Rptr. 286, 291
(Ct. App. 1986) (concluding that sufficient evidence sup-
ported conviction for robbery based on aiding and abetting
liability). Therefore, as with § 484(a), it would not be appar-
ent from reference to § 487(c) alone whether or not the crimi-
nal act was embraced within the generic definition of theft
offense under 8 U.S.C. § 1101(a)(43)(G). See Corona-
Sanchez, 291 F.3d at 1208. Because a defendant can be con-
victed of the substantive violation of § 487(c) based on an
                  MARTINEZ-PEREZ v. GONZALES                  9033
aiding and abetting theory alone, some of the conduct pro-
scribed by § 487(c) falls outside the generic definition of theft
offense. We therefore hold that grand theft under § 487(c) of
the California Penal Code does not facially qualify as an
aggravated felony under § 1101(a)(43)(G) under the categori-
cal approach.

II.   Modified Categorical Approach

   [5] Because the statute of conviction is not a categorical
match, we proceed to examine the conviction under the modi-
fied categorical approach. Corona-Sanchez, 291 F.3d at 1211.
“The idea of the modified categorical approach is to deter-
mine if the record unequivocally establishes that the defen-
dant was convicted of the generically defined crime, even if
the statute defining the crime is overly inclusive.” Id.

   [6] In Shepard v. United States, 125 S. Ct. 1254 (2005), the
Supreme Court recently clarified the documents that a sen-
tencing court can consider in applying the modified categori-
cal approach to prior convictions obtained by guilty plea. The
Court explained that the sentencing court can look only to
“the charging document, written plea agreement, transcript of
plea colloquy, and any explicit findings by the trial judge to
which the defendant assented.” Id. at 1257. These are docu-
ments from which “a later court could generally tell whether
the plea had ‘necessarily’ rested on the fact identifying the
burglary as generic . . . just as the details of instructions could
support that conclusion in the jury case, or the details of a
generically limited charging document would do in any sort
of case.” Id. at 1260; see also Corona-Sanchez, 291 F.3d at
1211 (explaining that the court can consider the charging doc-
uments in conjunction with the plea agreement, the transcript
of a plea proceeding, or the judgment to determine whether
the defendant pled guilty to the elements of the generic
crime). Charging papers alone, however, are never sufficient.
Id.
9034                MARTINEZ-PEREZ v. GONZALES
   Because the Court explained in Shepard that the sentencing
court can consider only those documents that demonstrate that
the plea necessarily rested on the fact identifying the burglary
as generic, such as “the details of a generically limited charg-
ing document,” we conclude it is unclear from the record of
the prior conviction whether Martinez pleaded guilty to all the
elements of a generic theft offense.3

   [7] Here, the administrative record does not contain any
plea agreement (if there was one) or a transcript of Martinez’s
plea proceeding. Rather, the record contains only (1) the
information charging Martinez with second degree robbery in
violation of § 211 of the California Penal Code, (2) a minute
order that apparently memorializes a probation violation hear-
ing, and (3) the abstract of judgment stating that the defendant
had pled guilty to a violation of § 487(c) of the California
Penal Code. The information alleged that Martinez “willfully,
unlawfully, and by means of force and fear [took] personal
property from the person, possession, and immediate presence
of Teresa Guttierrez.” The abstract of judgment states that
Martinez pled guilty to grand theft property of another in vio-
lation of § 487(c) of the California Penal Code.

   [8] Based on this record, we cannot determine whether
Martinez necessarily pled guilty to all of the elements of a
theft offense as generically defined. Martinez pled guilty to an
offense different from the one charged in the information. The
information therefore is not the sort of “generically limited
charging document” indicating that the plea necessarily rested
on the fact identifying the burglary as a generic theft offense
as defined in Corona-Sanchez. Further, because the adminis-
  3
    Although Shepard dealt with categorizing a prior conviction for pur-
poses of sentencing in a criminal case, the Court has noted that where a
statute “has both criminal and noncriminal applications,” the statute
should be consistently interpreted in both criminal and noncriminal, i.e.,
immigration, applications. Leocal v. Ashcroft, 125 S. Ct. 377, 384 n.8
(2004).
                  MARTINEZ-PEREZ v. GONZALES                9035
trative record does not include a plea agreement, a transcript
of the plea colloquy, or a statement of the factual basis for the
guilty plea, cf., Parilla v. Gonzales, No. 03-74010, slip op. at
8031-32 (9th Cir. Jul. 11, 2005), we likewise cannot deter-
mine whether Martinez pled guilty to the taking of property,
without consent, with the criminal intent to deprive the owner
of rights and benefits of ownership, as a principal and not as
an aider or abettor, as required by the generic definition of a
theft offense. See Corona-Sanchez, 291 F.3d at 1205.

                          Conclusion

   [9] Because the record does not establish that Martinez’s
conviction for grand theft constitutes a generic theft offense,
under either the categorical or modified categorical approach,
and thus qualifies as an aggravated felony under 8 U.S.C.
§ 1101(a)(43), we conclude that the IJ and the BIA erred in
determining that Martinez is removable for having committed
an aggravated felony.

  The petition for review is therefore

  GRANTED.
