                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MAGIN TAPIA-CRUZ,                                No. 10-73041

              Petitioner,                        Agency No. A092-431-879

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

              Respondent.



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

                             Submitted May 8, 2012
                        Re-submitted December 26, 2012 **
                              Pasadena, California

Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.




        *
             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).
      Magin Tapia-Cruz,1 a native and citizen of Mexico and a lawful permanent

resident (“LPR”) of the United States since 1990, petitions for review of a decision

by the Board of Immigration Appeals (“BIA”) finding him removable and

ineligible for cancellation of removal. We grant the petition in part, deny it in part,

and remand to the BIA for further proceedings consistent with this disposition.

      Tapia-Cruz was convicted in 2000 in state court of identity theft in violation

of California Penal Code (“Penal Code”) section 529.3.2 In 2009, he pleaded nolo

contendere to and was convicted of violating Penal Code section 12021(a)(1).3 In

2010, the Department of Homeland Security served Tapia-Cruz with a Notice to

Appear, charging him as removable for having committed an aggravated felony

under 8 U.S.C. § 1227(a)(2)(A)(iii) and a firearms offense under § 1227(a)(2)(C).




      1
            Petitioner stated during his removal proceedings that his real name is
“Magin Cruz-Tapia.” However, all the documents and briefs in this case refer to
him as “Magin Tapia-Cruz.” We use “Tapia-Cruz” for consistency with the record
and briefs.
      2
           Former Penal Code section 529.3 was amended in 2011 and
renumbered as section 529(a)(3) without any substantive change.
      3
              This section of the Penal Code was repealed in 2010 and continued
without substantive change in section 29800. See Cal. Pen. Code §§ 12021, 29800.
Effective January 1, 2012, the Penal Code statute under which Tapia-Cruz was
convicted in 2009 has been renumbered as section 29800(a)(1). We refer to the
statute as “section 12021(a)(1)” for consistency with the record and briefs.

                                     Page 2 of 5
      The BIA erred when it concluded that Tapia-Cruz was convicted of an

aggravated felony. Applying the modified categorical approach, the facts on which

Tapia-Cruz’s Penal Code section 12021(a)(1) conviction necessarily rest do not

satisfy both elements of the generic federal aggravated felony offense contained in

18 U.S.C. § 922(g)(1).4 The elements of the federal offense are 1) conviction in

any court of a crime punishable by imprisonment for a term exceeding one year;

and 2) shipping, transporting, possessing, or receiving any firearm or ammunition.

The judicially noticeable documents in the record 5 establish the following facts on

which Tapia-Cruz’s section 12021(a)(1) conviction necessarily rested: (1) Tapia-

Cruz was convicted of a felony in 2000 for violating Penal Code section 529.3; and

(2) in 2009 Tapia-Cruz owned, possessed, purchased, received, or had custody or



      4
              We previously held that Penal Code section 12021(a)(1) is not
categorically an aggravated felony when compared to 18 U.S.C. § 922(g)(1)
because “the full range of conduct encompassed by section 12021(a)(1) may not
constitute an aggravated felony as an offense described in 18 U.S.C. § 922(g)(1),”
and that therefore the modified categorical approach applies. United States v.
Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir. 2001).
      5
              The judicially noticeable documents available in the administrative
record are: (1) the state court abstract of judgment; (2) the felony complaint; (3) the
superior court’s electronic docket; and (4) the superior court’s sentencing
memorandum. See Shepard v. United States, 544 U.S. 13, 25-26 (2005); United
States v. Espinoza-Morales, 621 F.3d 1141, 1149 (9th Cir. 2010); United States v.
Snellenberger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en banc), overruled on other
grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir. 2012) (en banc).

                                     Page 3 of 5
control over a handgun. See Young v. Holder, 697 F.3d 976, 986 (9th Cir. 2012)

(en banc) (holding that a guilty or nolo contendere plea to a conjuctively-phrased

charge parroting a disjunctively-phrased statute does not admit guilt as to every

charged theory, but only as to at least one of those theories); United States v.

Aguila-Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc).

      Because a conviction under Penal Code section 529.3 is punishable by

imprisonment for a term exceeding one year, see Cal. Pen. Code §§ 18, 529(b), the

facts upon which Tapia-Cruz’s section 12021(a)(1) conviction necessarily rested

satisfy the first element of 18 U.S.C. § 922(g)(1). Aguila-Montes de Oca, 655 F.3d

at 940. However, those same facts are inconclusive as to whether Tapia-Cruz was

convicted of owning, possessing, purchasing, receiving, or having custody or

control over a firearm, and therefore do not satisfy the second element of section

922(g)(1). See Young, 697 F.3d at 986-87. Tapia-Cruz therefore was not

convicted of an aggravated felony.

      The BIA did not err, however, when it concluded that Tapia-Cruz was

convicted of a firearms offense. A violation of Penal Code section 12021(a)(1) is

categorically a federal firearms offense under 8 U.S.C. § 1227(a)(2)(C), rendering

Tapia-Cruz removable. See Gil v. Holder, 651 F.3d 1000, 1004 (9th Cir. 2011).




                                     Page 4 of 5
      Although Tapia-Cruz is removable because he was convicted of a firearms

offense, he is potentially eligible for cancellation of removal. The BIA concluded

that Tapia-Cruz was “statutorily ineligible” for cancellation of removal under 8

U.S.C. § 1229b(a)(3), which renders ineligible all LPRs who have been “convicted

of any aggravated felony.” Because we conclude that Tapia-Cruz was not

convicted of an aggravated felony, we remand this case to the BIA so that it may

consider Tapia-Cruz’s eligibility for cancellation of removal in light of this

memorandum and our recent en banc decisions in Young v. Holder and United

States v. Aguila-Montes de Oca. Each party shall bear its own costs.

      GRANTED in part, DENIED in part, and REMANDED.




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