                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          AUG 06 2015

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

DAVID CHAVEZ,                                    No. 11-73977

              Petitioner,                        Agency No. A070-911-147

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

              Respondent.


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

                            Submitted August 3, 2015**
                               Pasadena, California

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

      David Chavez, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’s (BIA) decision dismissing his appeal from an

Immigration Judge’s (IJ) order of removal. We have jurisdiction pursuant to 8

U.S.C. § 1252(a)(2)(D), and 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 Chavez’s conviction for petty theft with priors in

violation of California Penal Code §§ 484(a) and 666 constituted an aggravated

felony theft offense. See 8 U.S.C. §§ 1101(a)(43)(G); 1227(a)(2)(A)(iii).

California law does not require the jury to unanimously agree as to which of the

disjunctively worded forms of theft set forth in § 484(a) is the basis for the

defendant’s conviction. See People v. Fenderson, 116 Cal. Rptr. 3d 17, 27 (Cal.

Ct. App. 2010); People v. McLemore, 32 Cal. Rptr. 2d 687, 689 (Cal. Ct. App.

1994). As a result, the statute is not divisible and the modified categorical

approach is inapplicable. See Descamps v. United States, 133 S. Ct. 2276, 2282,

2285 (2013); Rendon v. Holder, 764 F.3d 1077, 1081, 1086 (9th Cir. 2014).

      Because the modified categorical approach does not apply and “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,” United States v. Rivera, 658 F.3d 1073,

1077 (9th Cir. 2011), the BIA erred when it concluded that Chavez was removable

as charged under 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii).




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Petition Granted.




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