                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,             No. 16-50423
           Plaintiff-Appellee,
                                        D.C. No.
              v.                  3:15-cr-02876-JAH-1

JOSUE MARTINEZ-HERNANDEZ,
        Defendant-Appellant.



      Appeal from the United States District Court
         for the Southern District of California
       John A. Houston, District Judge, Presiding


UNITED STATES OF AMERICA,             No. 17-50295
           Plaintiff-Appellee,
                                       D.C. No.
              v.                   3:16-cr-02253-H-1

OSCAR CARCAMO-SOTO,
        Defendant-Appellant.           OPINION



      Appeal from the United States District Court
        for the Southern District of California
       Marilyn L. Huff, District Judge, Presiding
2         UNITED STATES V. MARTINEZ-HERNANDEZ

          Argued and Submitted November 8, 2018
                   Pasadena, California

                       Filed January 9, 2019

    Before: Johnnie B. Rawlinson, Michael J. Melloy, * and
             Andrew D. Hurwitz, Circuit Judges.

                    Opinion by Judge Hurwitz


                           SUMMARY **


                           Criminal Law

    The panel affirmed two defendants’ convictions for
illegal reentry in violation of 8 U.S.C. § 1326 in cases in
which the defendants had been deported after immigration
officers determined that their prior convictions for robbery
in violation of California Penal Code § 211 were for “crimes
of violence” and thus constituted aggravated felonies under
8 U.S.C. § 1101(a)(43)(F).

    In the district court, the defendants collaterally attacked
their underlying removal orders, claiming that their removal
orders were invalid because § 211 robbery was no longer
treated as a crime of violence under recent Ninth Circuit


     *
      The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
         UNITED STATES V. MARTINEZ-HERNANDEZ                 3

decisions. The district court denied the motions, reasoning
that even if § 211 robbery were not a “crime of violence”
aggravated felony under § 1101(a)(43)(F), it still was a theft
offense under 8 U.S.C. § 1101(a)(43)(G).

    On appeal, the government conceded, and the panel held,
that in light of subsequent case law, the defendants’ robbery
convictions do not today qualify as “crimes of violence”
under § 1101(a)(43)(F), and that the current state of Circuit
law governs the defendants’ collateral attacks of their
removal orders. The panel nevertheless affirmed the
convictions because the district courts in both cases correctly
held that § 211 robbery qualifies as a generic theft offense
under § 1101(a)(43)(G), and thus is an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii).


                         COUNSEL

Doug Keller (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendants-Appellants.

Daniel Earl Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Assistant United States Attorney, Chief,
Appellate Section, Criminal Division; Adam L. Braverman,
United States Attorney; United States Attorney’s Office, San
Diego, California; for Plaintiff-Appellee.
4       UNITED STATES V. MARTINEZ-HERNANDEZ

                        OPINION

HURWITZ, Circuit Judge:

    Josue Martinez-Hernandez and Oscar Carcamo-Soto
(the “Defendants”) are Mexican citizens; each entered the
United States without inspection while young. Years later,
each Defendant was convicted of robbery in violation of
California Penal Code (“CPC”) § 211. Upon completion of
their prison terms, both Defendants were deported to Mexico
after immigration officers determined that their robbery
convictions were for “crimes of violence”—and thus
constituted aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(F).

    After returning to the United States, both defendants
were convicted of illegal reentry in violation of 8 U.S.C.
§ 1326. In these consolidated appeals, they collaterally
attack their removal orders, arguing that a conviction under
CPC § 211 no longer qualifies under § 1101(a)(43)(F) as a
crime of violence. We agree with that argument. But that
agreement avails the Defendants little, because the district
courts in both cases correctly held that § 211 robbery
qualifies as a generic theft offense under 8 U.S.C.
§ 1101(a)(43)(G), and thus is an aggravated felony under 18
U.S.C. § 1227(a)(2)(A)(iii). We therefore affirm the
Defendants’ convictions.

                             I.

    Martinez pleaded guilty to robbery in violation of CPC
§ 211 in 2004 and was sentenced to five years imprisonment.
Carcamo pleaded guilty to CPC § 211 robbery in 2009 and
received a three-year sentence. After release from prison,
each Defendant was served with a Notice of Intent to Issue a
Final Administrative Removal Order (“Notice”) and placed
        UNITED STATES V. MARTINEZ-HERNANDEZ                 5

in expedited removal proceedings pursuant to 8 U.S.C.
§ 1228. The materially identical Notices alleged that each
Defendant had (1) entered the United States “without
inspection, admission, or parole by an immigration officer,”
and (2) been later convicted of robbery in violation of CPC
§ 211. The Notices stated that the named Defendant was
deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) “because you
have been convicted of an aggravated felony as defined
in . . . 8 U.S.C. § 1101(a)(43)(F).” After hearings before
immigration officers, both Defendants were ordered to be
deported to Mexico.

    Both Defendants later reentered the country, and were
individually charged with violating 8 U.S.C. § 1326. They
each filed motions to dismiss pursuant to 8 U.S.C. § 1326(d),
claiming that their removal orders were invalid because CPC
§ 211 robbery was no longer treated as a crime of violence
under recent Ninth Circuit decisions. The district courts
denied the motions, reasoning that even if CPC § 211
robbery were not a “crime of violence” aggravated felony
under § 1101(a)(43)(F), it still was a “theft offense”
aggravated felony under § 1101(a)(43)(G).            Carcamo
entered into a conditional plea agreement allowing him to
appeal the denial of his § 1326(d) motion. Martinez initially
entered a guilty plea, but later withdrew it, and appealed the
denial of his § 1326(d) motion. We have jurisdiction over
the Defendants’ consolidated appeals under 28 U.S.C.
§1291, and review the denial of a motion to dismiss under
8 U.S.C. § 1326(d) de novo. United States v. Cisneros-
Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015).

                             II.

   A defendant charged with illegal reentry in violation of
8 U.S.C. § 1326 may “bring a collateral attack challenging
6         UNITED STATES V. MARTINEZ-HERNANDEZ

the validity of his underlying removal order, because that
order serves as a predicate element of his conviction.”
United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017).
A successful collateral attack requires proof not only of a
deficiency in the original removal process, but also that “the
entry of the order was fundamentally unfair.” 8 U.S.C.
§ 1326(d)(2)–(3). “An underlying removal order is
‘fundamentally unfair’ if: (1) a defendant’s due process
rights were violated by defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the
defects.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048 (9th Cir. 2004) (internal alteration omitted).

                                   A.

    The Defendants were removed under 8 U.S.C.
§ 1227(a)(2)(A)(iii), which applies to an “alien who is
convicted of an aggravated felony at any time after
admission.” Under § 1101(a)(43)(F) an “aggravated felony”
is a “crime of violence” as defined in 18 U.S.C. § 16, for
which the term of imprisonment is at least one year. A crime
of violence under 18 U.S.C. § 16 includes, as relevant in this
case, “an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). 1

   When the Defendants were removed, we treated a
robbery conviction under CPC § 211 as a crime of violence


    1
      The so-called “residual clause” in 18 U.S.C. § 16(b) also defines a
“crime of violence” as “any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense.” Section 16(b) was held unconstitutionally vague in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), and is not at issue in this case.
        UNITED STATES V. MARTINEZ-HERNANDEZ                 7

under § 1101(a)(43)(F). See Nieves-Medrano v. Holder, 590
F.3d 1057, 1057–58 (9th Cir. 2010). But, in 2011, the
California Supreme Court clarified that CPC § 211 can be
violated by the accidental use of force. See People v.
Anderson, 252 P.3d 968, 972 (Cal. 2011). We therefore
subsequently held that a CPC § 211 conviction is not
categorically a violent felony as defined in the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). United
States v. Dixon, 805 F.3d 1193, 1197–98 (9th Cir. 2015).

    The ACCA defines a “violent felony” as one that “has as
an element the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i). The definition of a crime of violence in 18
U.S.C. § 16(a) is materially indistinguishable, and the
government has therefore wisely conceded that the
defendants’ robbery convictions do not today qualify as
“crimes of violence” under 8 U.S.C. § 1101(a)(43)(F). The
government has also correctly conceded that the current state
of Circuit law governs the Defendants’ collateral attacks of
their removal orders. See United States v. Aguilera-Rios,
769 F.3d 626, 633 (9th Cir. 2014) (noting in this context that
“statutory interpretation opinions are fully retroactive.”).

                             B.

    But, the government’s concessions, while helpful,
merely start our inquiry. A successful collateral attack
requires proof that “entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d)(3). Thus, the Defendants must
therefore “demonstrate that prejudice resulted” from a defect
in the administrative process. United States v. Garcia-
Martinez, 228 F.3d 956, 963 (9th Cir. 2000).
8       UNITED STATES V. MARTINEZ-HERNANDEZ

                              1.

    The Notices characterized the Defendants’ CPC § 211
convictions as aggravated felonies because they constituted
“crimes of violence” as defined in 8 U.S.C. 1101(a)(43)(F).
The district courts in these cases instead found the § 211
convictions to be aggravated felonies because they were
theft offenses, as defined in 8 U.S.C. § 1101(a)(43)(G). The
Defendants first argue that we may not consider whether
their CPC § 211 convictions qualify as aggravated felonies
for a reason other than the one specified in their Notices.

    The Defendants rely on the settled premise that, when
considering a petition for review of a decision of the Bureau
of Immigration Appeals, we “have no power to affirm the
BIA on a ground never charged by the [government] or
found by the IJ.” Al Mutarreb v. Holder, 561 F.3d 1023,
1029 (9th Cir. 2009). But, this case arrives in a quite
different procedural posture than our direct review of BIA
decisions. In addressing petitions for review, our inquiry is
limited to determining whether the agency decision is
supported by substantial evidence or the BIA made an error
of law. See Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th
Cir. 2008). If the agency erred, we lack the power to tell it
to reach the same result for a different reason, as we would
be substituting our judgment for that of the executive with
respect to the discretionary decision to afford relief from
removal. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884
(9th Cir. 2005) (Judicial review is precluded “with respect to
decisions that constitute an exercise of the Attorney
General’s discretion.”); Regents of the Univ. of Cal. v. U.S.
Dep’t of Homeland Sec., 908 F.3d 476, 494 (9th Cir. 2018)
(“[T]he APA also forecloses judicial review under its
procedures to the extent that agency action is committed to
agency discretion by law.”) (internal quotation omitted).
         UNITED STATES V. MARTINEZ-HERNANDEZ                 9

    Here, however, we do not directly review executive
agency action. Rather, we consider appeals from district
court orders rejecting collateral attacks on prior executive
orders. In this context, the central issue for decision is
whether a defendant “was removed when he should not have
been.” Aguilera-Rios, 769 F.3d at 630 (quoting United
States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.
2006)). If a violation of CPC § 211 is categorically a theft
offense under 8 U.S.C. § 1101(a)(43)(G), the Defendants
should have been removed, albeit perhaps on different
statutory bases than those cited in their Notices.

    The determination of whether CPC § 211 robbery is a
theft offense under § 1101(a)(43)(G) is purely a question of
law. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir.
2018). Even if the Defendants did not have occasion to
address that legal question at the time of their removals, they
have thoroughly done so today. If CPC § 211 robbery is an
aggravated felony under § 1101(a)(43)(G), the Defendants
will have suffered no real prejudice from any inability to
address the issue in their original removal proceedings. We
therefore turn to whether a § 211 conviction qualifies as a
“theft offense” under §1101(a)(43)(G).

                              2.

    To determine whether a CPC § 211 conviction qualifies
as a “theft offense” under § 1101(a)(43)(G) and thus is an
aggravated felony under 8 U.S.C.§ 1227(a)(2)(A)(iii), we
apply the “categorical” approach, under which we “compare
the elements of the statute forming the basis of the
defendant’s conviction with the elements of the generic
crime.” See United States v. Alvarado-Pineda, 774 F.3d
1198, 1202 (9th Cir. 2014) (internal quotation omitted).
“We have defined generic ‘theft’ as a taking of property or
10        UNITED STATES V. MARTINEZ-HERNANDEZ

an exercise of control over property without consent with the
criminal intent to deprive the owner of the rights and benefits
of ownership.” Id. (internal quotations and citations
omitted). “Generic theft, in other words, requires (1) the
taking of (2) property (3) without consent (4) with the intent
to deprive the owner of rights and benefits of ownership.”
Id. (internal quotations and citations omitted).

    CPC § 211 in turn defines robbery as “the felonious
taking of personal property in the possession of another,
from his person or immediate presence, and against his will,
accomplished by means of force or fear.” We have not
addressed in a published opinion whether CPC § 211
robbery is categorically a generic theft offense under
8 U.S.C. § 1101(a)(43)(G). 2 But, in Alvarado-Pineda, we
held that a virtually identical Washington statute, which
prohibited the “tak[ing of] personal property from the person
of another or in his or her presence against his or her will,”
was a categorical theft offense. 774 F.3d at 1202–03
(alteration in original) (citing Wash. Rev. Code
§ 9A.56.190). We stressed that although “the statute does
not explicitly provide that specific intent to steal is an
element of the crime, the state courts have so held.” Id. at
1202. And, we noted the accepted rule that robbery is
“larceny . . . plus two additional requirements: that the
property be taken from the victim’s presence, and that the
taking be accomplished by means of force or fear.” Id. at

     2
      A recent memorandum disposition held that CPC § 211 robbery is
categorically a § 1101(a)(43)(G) theft offense. Pena-Rojas v. Sessions,
724 F. App’x 622, 623 (9th Cir. 2018); see also United States v. Guzman-
Ibarez, 792 F.3d 1094, 1097–99 (9th Cir. 2015) (holding, but without
applying a categorical analysis, that an immigration judge correctly
determined in 1999 that a conviction under CPC § 211 was a theft
offense).
        UNITED STATES V. MARTINEZ-HERNANDEZ                11

1203 (citing 3 Wayne R. LaFave, Substantive Criminal Law
§ 20.3 (2d ed. 2003)) (internal quotations omitted).

    The elements of CPC § 211 robbery are
indistinguishable from those in the Washington robbery
statute addressed in Alvarado-Pineda. The California
Supreme Court, like its Washington counterpart, has made
clear that specific intent to steal is an essential element of
§ 211 robbery. See Anderson, 252 P.3d at 972; People v.
Pollock, 89 P.3d 353, 367 (Cal. 2004); People v. Lewis, 22
P.3d 392, 419 (Cal. 2001). And, consistent with the general
rule, the California Supreme Court has also described CPC
§ 211 as punishing “a species of aggravated larceny,”
elevated to robbery by proof that the taking was
accomplished through force or fear and from the victim or in
his presence. People v. Gomez, 179 P.3d 917, 920 (Cal.
2008).

    In an attempt to distinguish Alvarado-Pineda, the
Defendants argue that one can be convicted of CPC § 211
robbery as an accessory after the fact, for example, by being
a getaway driver. The Defendants then contend, quoting
United States v. Vidal, that “an accessory after the fact to
theft cannot be culpable of generic theft.” 504 F.3d 1072,
1080 (9th Cir. 2007) (en banc). On analysis, however, the
argument fails.

    As we have previously noted, Vidal addressed an auto
theft statute, California Vehicle Code § 10851(a), which
expressly imposed liability on accessories after the fact. See
Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061–62 (9th
Cir. 2009) (Vidal “examined . . . a statute that expressly
included within its reach the actions of an accessory.”). CPC
§ 211 has no such language. Moreover, “[t]here is a separate
section in the California Penal Code, section 32, that
12        UNITED STATES V. MARTINEZ-HERNANDEZ

specifically imposes criminal liabilities on accessories.” Id.
at 1602. And, “[e]xcept in those relatively rare instances
where the conduct of an accessory after the fact is included
within the criminal statute, as was the case in Vidal,
California courts require prosecutions under an accessory
after the fact theory of liability to be brought under section
32 of the California Penal Code.” Id. Neither defendant here
was charged under § 32.

    Defendants also argue that because California courts
have upheld convictions under § 211 of defendants who
engaged only in asportation (taking) of property that had
previously been forcibly taken from its owner, § 211 robbery
is not generic theft. But, to be convicted of CPC § 211
robbery under any theory, a defendant “must form the intent
to facilitate or encourage the commission of the robbery
before or during the carrying away of the loot.” Gomez, 179
P.3d at 921 (citing People v. Cooper, 811 P.2d 742, 748 (Cal.
1991)). And, anyone found guilty of CPC § 211 robbery
must have engaged in the “exercise of control over property
without consent with the criminal intent to deprive the owner
of the rights and benefits of ownership.” See Alvarado-
Pineda, 774 F.3d at 1202. That is the classic definition of
theft. Id.

                                 III.

    For the reasons above, we AFFIRM the judgments of
the district courts in these consolidated appeals. 3


     3
       A successful collateral attack under § 1326(d) also requires an
alien to demonstrate “a ‘plausible’ ground for relief from deportation.”
United States v. Arietta, 224 F.3d 1076, 1079 (9th Cir. 2000). Neither
Defendant suggested such a plausible ground, either below or on appeal.
