                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 02 2011

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



                           FOR THE NINTH CIRCUIT


VANNY CARLO JOYA-ZELAYA,                         No. 04-72378

             Petitioner - Appellant,             Agency No. A36-331-098

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

             Respondent - Appellee.


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

                       Argued and Submitted May 13, 2008
                        Submission Vacated May 15, 2008
                          Resubmitted August 31, 2011
                              Pasadena, California


Before: SILVERMAN, BERZON, Circuit Judges, and BENITEZ,** District Judge.




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
      Vanny Carlo Joya-Zelaya, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ affirmance of an immigration judge’s

order finding Joya-Zelaya removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as

an alien convicted of an aggravated felony. We have jurisdiction under 8 U.S.C. §

1252. We review de novo whether a conviction constitutes an aggravated felony.

Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000).

      To determine if Joya-Zelaya’s conviction qualifies as a burglary conviction

under 8 U.S.C. § 1101(a)(43)(G), we use the approach outlined in Taylor v. United

States, 495 U.S. 575 (1990). Joya-Zelaya’s conviction does not categorically

support his removability for burglary under § 1101(a)(43)(G). California Penal

Code sections 459 and 460 are “categorically broader than generic burglary.”

United States v. Aguila-Montes de Oca, __ F.3d __, 2011 WL 3506442, at *25 (9th

Cir. Aug. 11, 2011).

      When “we determine that the statute under which a defendant or alien was

previously convicted is categorically broader than the generic offense, we may

apply the modified categorical approach.” Aguila-Montes de Oca, 2011 WL

3506442, at *21. Joya-Zelaya’s plea to “wilfully and unlawfully enter[ing] a

commercial building occupied by Circuit City with the intent to commit larceny or

any felony in violation of [California] Penal Code section 460(b),” second degree


                                        2
burglary as defined by California Penal Code section 459, does not demonstrate

that his “conviction necessarily rested on facts satisfying the elements” of generic

burglary. Id. at *26.

      For the foregoing reasons, Joya Zelaya’s conviction is not an aggravated

felony under § 1101(a)(43)(G).

      PETITION FOR REVIEW GRANTED.




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