PULIDO-GOMEZ, BENITO

A019-987-183
ICE, 1705 E. HANNA ROAD
ELOY, AZ 85131
Name: PULIDO-GOMEZ, BENITO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofice of the Clerk
J!07LccvhurgFtkc.5utc2000
IdI/vLhurch. Irgdiu 2201I
OHS/ICE Ofice of Chief Counsel - EAZ
P .0. Box 25158
Phoenix, AZ 85002
A019-987-183
Date of this notice: 6/27/2012
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Mullane, Hugh G.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Benito Pulido-Gomez, A019 987 183 (BIA Jun. 27, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished

U.S. Deparent of Justice

Exeutive Ofce fr Imigation Review
Falls Church, Viinia 22041
File: A019 987 183 - Eloy, Arizona
Decision of te Boad oflmigation Appeals
Date:
JUN 2 7 2012
In re: BENITO PULIDO-GOMEZ a.k.a. Ben Pulido a.k.a. Benny Moniker a.k.a. Benito Pulido
a.k.a. Gomez Benito Moniker a.k.a. Gomezbenito Moniker
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHAF OF DHS:
CHARGES:
Dominique J. Park
Assistant Chief Counsel
Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony under section 101(a)(43)(G) of the Act
APPLICATION: Terination
The respondent, a native and citizen of Mexico and a lawl permaent resident of the
United States since March 1971, has fled a timely appeal of an Immigation Judge's March 1, 2012,
decision. In that decision, the Immigration Judge denied the respondent's request to terminate
proceedings and fund the respondent removable, as charged, based on his record of conviction
(Exh. 2) as to his 2010 Califria conviction fr gand thef auto with prior, which the Immigration
Judge fund to be an aggavated felony ''thef" ofense as defned under section 101 (a)(43)(G) of the
Immigation and Nationality Act, 8 U.S.C. l 10l (a)(43)(G). In addition, having expressed no fear
of persecution or torture if reted to Mexico (Tr. at 22), the Immigation Judge deterined that
the respondent had not established his eligibility fr ay relief or protection fom removal. The
record will be remanded to the Immigation Court fr fher proceedings in accordance with this
opinion and the entry of a new decision.
The Board reviews an Immigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.1 (d)(3)(i);
Matter of R-S-H-, 23 l&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 l&N Dec. 462 (BIA 2002). The
Board reviews questions of law, discretion, and judgment and all other issues in a appeal of an
Immigration Judge's decision de novo. See 8 C.F.R. 1003. l (d)(3)(ii).
The record refects that on November 16, 2010, the respondent was convicted in the Superior
Court of Califra, County of Los Angeles, fr the ofense of Grand Tef Auto with Prior, in
violation of CAL. PEAL CODE 666.5, ad sentenced to a ter of imprisonent of 2 yeas (Exh. 2).
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Cite as: Benito Pulido-Gomez, A019 987 183 (BIA Jun. 27, 2012)
, .
A0.19 987 183
The respondent challenges the Imigation Judge's fndings as to his removability. Specifcally,
the respondent contends tat the Department of Homeland Secwit ("DHS") faled to meet its
buden of proof to show that his 20 l 0 Califra conviction fr Grad Thef Auto with Prior in
violaton of CA. PENA CODE 666.5, consttted a aggavated flony ''thef" ofense as defned
in secton 101(a)(43)(G) of the Act, so a to support the chage of removability under
section 237(a)(2)(A)(iii) of the Act. See 8 C.F.R. 1240.8(a) (the burden is on the DHS, to show by
clea ad convincing evidence that the respondent is removable); see also Woodby v. INS,
385 U.S. 276 (1966). On de novo review, we agee with the respondent's appellate contention that
the record of conviction submitted by the DHS in this case is insufcient to establish the
respondent's removability by clear and convincing evidence so as to meet the requisite burden of
proof under the statte. See section 240(c)(3)(A) of the Act; 8 U.S.C. 1229a(c)(3)(A).
Under the Act, an "aggavated felony" includes "a thef ofense (including receipt of stolen
propery) or burglary ofense fr which the term of imprisonment [is] at least one year."
Section 101(a)(43)(G) of the Act. We note that pursuant to Board and Ninth Circuit precedents, a
''thef ofense" under section 101(a)(43)(G) of the Act consists of "the taking of, or exercise of
contol over, proper without consent whenever there is criminal intent to deprive the ower of the
rights ad benefts of owership, even if such deprivation is less than total or peraent."
Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (I 2008); see also Matter of V-Z-S-,
22 I&N Dec. 1338 (I 2000); United States v. Vdal, 504 F.3d 1072, l 077 (9t Cir. 2007) (en bane).
The Califria stattes that underpin the respondenf s convictions at issue here provide in
pertinent part as fllows:
CAL. PENAL CODE 666.5 - Prior felony theft conviction involving vehicle
(a) Ever person who, having been previously convicted of a felony violation of
Section l 0851 of the Vehicle Code, or flony grand thef involving an automobile in
violaton of subdivision ( d) of Section 487 or frer subdivision (3) of Section 487, as that
section read prior to being amended by Section 4 of Chapter 1125 of the Statutes of 1993,
or felony gnd thef involving a motor vehicle, as defned in Section 415 of the Vehicle
Code, any tailer, as defned in Section 630 of the Vehicle Code, any special constction
equipment, as defned in Section 565 of the Vehicle Code, or any vessel, as defned in
Section 21 of the Harbors and Navigation Code in violation of frmer Section 487h, or a
flony violation of Section 496d regl dless of whether or not the person actually served a
prior prison ter fr those ofenses, is subsequently convicted of any of these ofenses shall
be punished by imprisonment pursuant to subdivision (h) of Section 1170 fr two, three, or
fur years, or a fne of ten thousand dollars ($10,000), or both the fne and the imprisonent.
(emphasis added).
CAL. VEHICLE CODE 10851. Theft and unlawful driving or taking of a vehicle
(a) Any person who drives or takes a vehicle not his or her own, without the consent of the
ower thereof, and with intent either to peranently or temporarily deprive the owner thereof
of his or her title to or possession of the vehicle, whether with or without intent to steal the
vehicle, or any person who is a party or a accessory to or an accomplice in the driving or
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Cite as: Benito Pulido-Gomez, A019 987 183 (BIA Jun. 27, 2012)
... .
A019 987 183
unauthorized taking or stealing, is guilty of a public ofense and, upon conviction thereof,
shall be punished by imprisonment in a county jail fr not more tha one year or pursuant
to subdivision (h) of Section 1170 of the Penal Code or by a fne of not more than fve
thousand dollars ($5,000), or by both the fne and imprisonment.
As noted by the Califria courts, CAL. PENAL CODE 666.5, is placed in a portion of the Penal
Code dealing with enhacement of sentence and other matters relating to punishment, rather than
with defnition of substantive ofenses. See People v. Young, 285 Cal.Rpt. 583, 585
(Cal.App. 1 Dist., 1991). Thus, the Califria courts have concluded that CAL. PENAL CODE
666.S(a) creates only enhanced punishment fr repeat ofenders, not a new substantive ofense.
See People v. Garcia. 132 Cal. Rpt.2d 694, 699 (Cal.App. 2 Dist.,2003); Consequently, in this case,
as CAL. PENAL CODE 666.5 does not defne a substantive ofense, but rather provides fr enhanced
punishment premised on the respondent's prior conviction fr a flony violation of CAL. VEHICLE
CODE 1085l(a), we must deterine whether the record supports fnding that the respondent's
conviction in violation of CAL. PENAL CODE 666.5, qualifes as a "thef ofense" aggavated felony
under section 101(a)(43)(G) of the Act, by examining the respondent prior felony violation of
CAL. VEHCLE CODE 1085l(a).
The Immigaton Judge's cites to the decision of the Ninth Circuit in US. v. Rivera,
658 F.3d 1073 (9t Cir. 2011 ), in support of his conclusions. However, although the cases are simila
in some respects (i.e., they both deal with Califria thef statutes and the subsequent application of
sentencing enhancement provisions), they are nonetheless distinguishable, and do not warrant the
sae result. The court in US v. Rivera, a federal sentencing case, considered the aggavated flony
thef ofense refrenced in 8 U.S.C. 1101(a)(43)(G), with regards to a conviction fr petty thef in
violation of CAL. PENAL CODE 484(a), a misdemeanor that carries a sentence of not more than
six months in the county jail, see CAL. PENAL CODE 17(a), 490, that when viewed in conjunction
wit the application of the recidivist sentencing provision fund in CAL. PENAL CODE 666, can
increase the ter of imprisonment to sixteen monts or two years (as it did in that case). See
CAL. PENAL CODE 18. The Rivera court, applying the United States Supreme Cour's decision in
United States v. Rodriquez, 553 U.S. 377 (2008), which had reversed that court's earlier decision i
United States v. Rodiquez, 464 F .3d 1072 (9t Cir. 2006) (holding that the recidivist enhancement
could not be considered in determining whether the defndant's prior drug-trafcking convictions
constituted a serious drug ofense), concluded that "because the recidivist sentence does relate to the
commission of the repeat ofense ad is clearly part of the sentence 'prescribed by law,' a recidivist
sentence may be considered in deterining whether a prior conviction qualifes as a predicate
ofense." See US v. Rivera, supra at 1076 (citing United States v. Rodriquez, supra at 382-86).
Nevertheless, the Rivera court fund that "[t]he fct that [the defndant's] petty thef convictions
under CAL. PENAL CODE 484(a) ad 666 satisf the 'at least one year' sentence requirement of
8 U.S.C. 110l(a)(43)(G) does not, however, end our inquir ... [w]e must still address the issue
wheter such a conviction constitutes a predicate thef ofense that may be deemed an aggravated
flony." Id In this regard, the Rivera court considered that pursuant to its prior decisions, "a petty
thef conviction, under CAL. PENAL CODE 484(a) ad 666, is not a categorical match to the fderal
d e f i n i t i o n o f a [ n] [ a g g r a v a t e d f e l o n y ] t h e f t o f f e n s e . " S e e
Carrillo-Jaime v. Holder, 572 F.3d 747, 750 (91h Cir. 2009) (quoting United States v. Corona
Sanchez, 291 F.3d 1201, 1205 (9t Cir. 2002) (en bae)). Thus, the Rivera court had to apply the
modifed categorical approach to the judicially-noticeable documents submitted in te record so as
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Cite as: Benito Pulido-Gomez, A019 987 183 (BIA Jun. 27, 2012)
,,,
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A019 987 183
to deterine that, in that case, the record of conviction "clearly and unequivocally [established] that
[the defendant's] petty thef conviction was based upon his plea of guilt to conduct that constitutes
a generic thef ofense, ad because this was a thef ofense conviction fr which the ter of
imprsonent was at least one yea, it qualifed fr [federal sentencing enancements]." Id at 1078.
Similaly, within the jurisdiction of the Ninth Circuit, the ofense defned by CAL. VEHCLE CODE
10851 (a) does not qualif categorically as a "thef ofense" under section 101(a)(43)(G) of the Act
because it encompasses "accessor aer the fct" ofenses. See United States v. Vdal, supra.
Accordingly, the treshold question befre us is whether the respondent's crime qualifes a a thef
ofense under the "modifed categorical approach," that is, whether the record contains a "chaging
document, wtten plea ageement, tascript of plea colloquy, any explicit fctual fnding by the tal
judge to which te respondent assented" refecting that he was convicted of violating 10851 (a) as
a principal rather tha a a accessor afer the fct. Id. at 1086-89; Penuliar v. Mukey,
528 F.3d 603 (9t Cir. 2008); see also Arteaga v. Mukey, 511 F.3d 940, 947 (9t Cir. 2007)
(distinguishing United States v. Vdal, supra, and holding that a violation of 10851 (a) is a "thef
ofense" aggavated felony where the conviction record establishes that te alien was convicted as
a principal).
I this instance, the D HS presented a certifed copy of an abstact of judgement refecting that the
respondent had been convicted on November 16, 2010, of the ofense of Grand Thef Auto with Prior
in violation of CAL. PENAL CODE 666.5, based upon his plea to Count 2 in the Felony Complaint
(Exh. 2). The record also includes a certifed copy of the Felony Complaint (LA066369) charging
the respondent in Count 2 with the crime of Unlawfl Driving or Taking of a Vehicle with Prior, in
violation of CAL. PENAL CODE 666.5. However, whereas the Felony Complaint cites to the
respondent's previous conviction fr a flony violation of CAL. VEHCLE CODE 10851(a) on
May 1, 2009, as required by the statute, the Felony Complaint provides no frther inforation
concerng the basis of the 2009 conviction, and whether the respondent was convicted as a principal
rather than as an accessory afer the fct. The OHS did not present a copy of the tanscript of the
respondent's plea colloquy as to the respondent's 2010 conviction fr the ofense of Grand Thef
Auto with Prior, that could fher clarif the fctual basis fr te plea. Moreover, the OHS presented
no documentation concerng the respondent's 2009 conviction fr a felony violation of
CAL. VEHCLE CODE 10851(a), which undergirds the 2010 Califra conviction fr the ofense
alleged in the Notice to Appear (fr 1-862) (Exh. 1), in support of the charge of removability.
Therefre, in contrast to the situation addressed by the Ninth Circuit in US. v. Rivera, supra, and
upon which the Immigation Judge baes his opinion, there is here no "categorical match to the
predicate thef ofense," and we have no ')udicially-noticeable documents" in the record with regards
to the respondent's 2009 conviction fr a flony violation of CAL. VEHCLE CODE 10851(a), so as
to apply the modifed categorical in this instce." See United States v. Stickand,
601 F.3d 963, 967-68 (9t Cir. 2010) (en bane) (quoting United States v. Snellenberger,
548 F.3d 699, 701 (9t Cir. 2008).
Consequently, under the controlling authority of the Ninth Circuit, and applying the modifed
categorical approach to the court documents fund in the respondent's record of conviction (Exh. 2),
we are unable to conclude that the DHS established by clea and convincing evidence that the
respondent is subject to removal, as charged, fr having been convicted of a aggavated flony "thef
ofense" under section 101(a)(43)(G) of the Act based on his 2010 Califria conviction fr the
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Cite as: Benito Pulido-Gomez, A019 987 183 (BIA Jun. 27, 2012)
<
A019 987 183
ofense of Grand Thef Auto with Prior, in violation of CAL. PENAL CODE 666.5. See
Penuliar Y. Muksey, supra; see also Arteaga V. Muksey, supra. Therefre, we fnd it appropriate,
under the circumstances, to remad the record to the Immigation Court fr fher proceedings in
accordace wit this opinion ad the enty of a new decision.
Accordingly, the fllowing orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORER: The record is remanded to the Immigation Court fr fer proceedings
in accordace with this opinion and the enty of a new decision. .
FOR T BOA
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Cite as: Benito Pulido-Gomez, A019 987 183 (BIA Jun. 27, 2012)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UITED STATES IMMIGRATION COURT
ELOY, ARIZONA
File: A019-987-183 March 1, 2012
In the Matter of
BENITO PULIDO-GOMEZ IN REMOVAL PROCEEDINGS
RESPONDENT
CHRGES:
APPLICATIONS:
ON BEHALF OF
ON BEHF OF
Section 237(a) ( 2) (A) (iii) , aggravated
defined in 101 (a) (43) (g) of the Act.
None.
RESPONDENT: PRO SE
DHS: DOMINIQUE PARK
ORAL DECISION OF THE IMMIGRATION JUDGE
PROCEDURAL HISTORY
felony as
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These removal proceedings were initiated by the filing
of a Notice to Appear dated December 15, 2011 by the Department
of Homeland Security. The Department alleges that the
respondent is not a citizen or a national of the United States,
but is a native and citizen of Mexico who became a lawful
permanent resident of the United States effective March 3, 1971.
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(
The Department further alleges that on Novemer 16, 2010, the
respondent was convicted in the California Superior Court, Los
Angeles County for grand theft auto with prior in violation of
Section 666. 5 of the California Penal Code and sentenced to two
years' confinement. Therefore based on those allegations, the
Government charges that the respondent is subject to removal
from the United States pursuant to INA Section 237(a} (2} (A} (iii}
as an alien who after his admission has been convicted of an
aggravated felony as defined in Section lOl(a} (43) (g), a theft
offense for which a term of imprisonment of at least one year
was imposed.
REMOVABILITY
The respondent admitted his alienage, as well as his
status as a lawful permanent resident, but denied the alleged
conviction and sentence, and contested his removability as
charged.
In support of the contested allegations and charge of
removability, the Department submitted portions of the record of
the respondent's conviction, which was admitted into evidence
without objection as Exhibit 2. Those documents include the
abstract of judgment, as well as the six-page felony complaint.
The abstract establishes that the respondent was convicted
pursuant to his plea of count two of the charging document, a
violation of Section 666. 5 of the California Penal Code
described on the abstract of judgment as grand theft auto with
A019-987-183 2 March 1, 2012
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prior. That conviction took place on November 16, 2010 and
resulted in a sentence of confinement of two years.
Count two of the charging document, the felony
complaint, alleges that the respondent committed the crime of
"unlawful driving or taking of a vehicle with prior in violation
of Penal Code Section 666.5, a felony," in that the respondent,
"did unlawfully drive and take a certain vehicle to, a Nissan
Pathfinder, license number 4FHR743, then in there the personal
property of Ramirez Ignacio without the consent of and with
intent either permanently or temporarily to deprive the owner,
the said owner of title to and possession of said vehicle."
Applying the Ninth Circuit precedent decision of U. S.
v. Rivera, 2011 WL 4375672 (9th Cir. 2011), which held that a
violation of Section 666, petty theft with prior with a sentence
of more than one year, could be an INA Section lOl (a) (43) (g)
"theft offense" under a rodif ied categorical analysis of the
record of conviction if that record establishes that the
conviction was for the non-consensual taking of property. In
this case, the respondent was convicted of Section 666.5 of the
California Penal Code, which like Section 666 criminalizes a
theft offense where a prior conviction exists. However, CPC
Section 666.5 specifically relates to theft involving a motor
vehicle, although Section 666.5 is more specific in nature,
focusing on motor vehicles, whereas Section 666 is broadly
focused. The Court does not see the distinction as significant
A019-987-183 3 March 1, 2012
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.... . sa.-C
in the application of U. S. v. Rivera .
. Based on a modified categorical analysis of the
respondent' s record of conviction and applying U.S. v. Rivera,
the Court finds that the respondent's conviction is an
aggravated felony under Section lOl(a) (43) (g) inasmuch as it
involves the taking of property and not services, and therefore,
the charge of removability filed by the Department against the
respondent pursuant to INA Section 237 (a) (2) (A) (iii) is
sustained by clear and convincing evidence.
RELIEF
The respondent designated Mexico as the country of
removal should that be necessary and expressed no specific fear
of return to that country cognizable under Sections 208 or
24l (b) (3) of the Act or Article III of the Convention Against
Torture, inasmuch as the respondent has been convicted of an
aggravated felony as a lawful permanent resident, he is
statutorily ineligible for cancellation of removal as a lawful
permanent resident pursuant to INA Section 240 (A) (a), as well as
voluntary departure pursuant to INA Section 240 (B) (b).
Additionally, the respondent would not be able to seek
readjustment of his status pursuant to INA Section 24S (a)
inasmuch as no waiver of an admissibility, which would be
required as a result of his conviction, is available to him
under Section 212 (h) as a permanent resident who has suffered an
aggravated felony conviction.
A019-987-183 4 March 1, 2012
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There being no forms of relief for which the
respondent appears to be statutorily eligible, the Court sees no
alternative but to order the respondent removed from the United
States to Mexico.
ORDER
THE RESPONDENT IS HEREBY ORDERED removed from the
United States to Mexico on the charge reflected in the Notice to
Appear.
A019-987-183 5 March 1, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JDGE
RICHARD A. PHELPS, in the matter of:
BENITO PULIDO-GOMEZ
A019-987-183
ELOY, ARIZONA
is an accurate, verbatim transcript of the recording as provided
by the Executive Off ice for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Immigration Review.
MICHAEL PERLMAN (Transcriber)
DEPOSITION SERVICES, Inc.
APRIL 4, 2012
{Completion Date)
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