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The Ninth Circuit held that George Camacho Garcia did not validly waive his right to appeal because the immigration judge misadvised him as to whether his California theft conviction was an aggravated felony. Mr. Camacho Garcia was convicted of grand theft in violation of California Penal Code (PC) section 487(a) and received a sentence to 16 months of imprisonment.

The court held Mr. Camacho Garcia's theft conviction was not categorically an aggravated felony. California's definition of theft at PC 484 defines the offense to encompass theft of property, theft of labor, and "consensual" taking by false pretenses (i.e., fraud). The federal generic definition of theft, however, is limited to "[1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." The federal definition therefore does not exactly correspond to the California definition, since it does not include taking by false pretenses or taking of labor. Thus, a California theft conviction with a sentence to imprisonment of one year or more is not categorically an aggravated felony.

The Camacho Garcia panel then applied the modified categorical approach to determine whether the conviction documents narrowed the conviction to the federal definition. It found that the charging document did specify theft of property (as opposed to labor), so the conviction matched that element of the federal definition. The conviction documents, however, did not specify whether the theft was by unlawful taking (without consent) or false pretenses (with consent). The conviction therefore did not match the federal definition.

Note, the issue of divisibility was not raised in the briefs on this case. The court accordingly did not address whether a California theft conviction is even susceptible to the modified categorical analysis of whether the conviction meets the federal definition.

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