CA9 on Descamps, Divisibility: Rendon v. Holder

"In this case, we consider whether a statute written in the disjunctive is divisible in light of the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013).  The statutory text at issue is a different portion of the same statute that the Supreme Court encountered in Descamps — California Penal Code section 459 — which states, inter alia, that “[e]very person who enters any . . . vehicle . . . , when the doors are locked, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.”  Here, the Board of Immigration Appeals (BIA) determined that petitioner’s conviction under section 459 qualified as an attempted theft offense, an aggravated felony under 8 U.S.C. § 1101(a)(43)(U), by applying the modified categorical approach.  This approach is permissible only if section 459 is divisible.  We hold that the presence of an “or” between “grand or petit larceny” and “any felony” does not, in itself, render the statute divisible, and that, under Descamps, section 459 is indivisible as a matter of law.  Therefore, the BIA’s use of the modified categorical approach was impermissible, and we accordingly grant the petition for review." - Rendon v. Holder, Aug. 22, 2014.  [Hats off to Brigit G. Alvarez!]