FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BUNTY NGAETH, 

Petitioner, No. 04-71732

v. Agency No. 

M A25-076-631 ICHAEL B. MUKASEY,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals.

Argued and Submitted

May 13, 2008—Pasadena, California

Filed September 24, 2008

Before: Barry G. Silverman and Marsha S. Berzon,

Circuit Judges, and Roger T. Benitez,** District Judge.

Per Curiam Opinion

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2). 

**The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation. 

13601
COUNSEL

Bill Waddell, Law Office of Bill Waddell, San Diego, California, for the petitioner. 

NGAETH v. MUKASEY 13603
Jeffrey J. Bernstein and Jem C. Sponzo, United States Department of Justice, Civil Division, Washington, D.C., for the

respondent. 

OPINION

PER CURIAM: 

Bunty Ngaeth1 petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. He

argues that the BIA erred in holding that his burglary conviction could be classified as an attempted theft offense, qualifying him as an aggravated felon under the Immigration and

Nationality Act (“INA”). See 8 U.S.C. § 1101(43)(G), (U).

We have jurisdiction under 8 U.S.C. § 1252, and we deny the

Petition. 

I. BACKGROUND

Ngaeth is a native and citizen of Cambodia. He was admitted to the United States as a refugee in 1980 and became a

lawful permanent resident in 1982. On October 2, 1992,

Ngaeth pled guilty to a second-degree burglary in violation of

section 459 of the California Penal Code and received a oneyear sentence. Section 459 provides, in pertinent part:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn,

stable, outhouse or other building, tent, vessel . . . ,

floating home . . . , railroad car, locked or sealed

cargo container, whether or not mounted on a vehicle, trailer coach . . . , any house car . . . , inhabited

camper . . . , vehicle . . . when the doors are locked,

aircraft . . . , or mine or any underground portion

1Ngaeth’s first name was misspelled as “Bunny” on his immigration

documents. We hereby amend the caption to reflect the proper spelling. 

13604 NGAETH v. MUKASEY
thereof, with intent to commit grand or petit larceny

or any felony is guilty of burglary. 

Ngaeth pled specifically to one count of “enter[ing] a locked

motor vehicle . . . with the intent to commit theft.” 

On April 7, 1999, the government served Ngaeth with a

Notice to Appear (“NTA”), charging him with removability

as an alien convicted of an aggravated felony. The NTA was

later amended to allege that the aggravated felony was a “theft

. . . or burglary offense.” See 8 U.S.C. § 1101(a)(43)(G)

(defining “aggravated felony” as “a theft . . . or burglary

offense for which the term of imprisonment [is] at least one

year”).2 Ngaeth claimed he was not removable because vehicular burglary under section 459 of the California Penal Code

was not a burglary offense or a crime of violence under Ye v.

I.N.S., 214 F.3d 1128, 1131-34 (9th Cir. 2000), and because

it was not a theft offense. But the immigration judge (“IJ”)

concluded that Ngaeth’s conviction for entering a locked

vehicle “with the intent to commit theft” was an attempted

theft offense, and, therefore, an aggravated felony under 8

U.S.C. § 1101(a)(43)(U). 

Ngaeth appealed to the BIA. The BIA initially remanded

the case to the IJ to address the availability of relief in light

of INS v. St. Cyr, 533 U.S. 289 (2001). Ngaeth did not appear

at two hearings on remand and was ordered removed in

absentia. He moved to reopen, claiming that: (1) he had not

2Despite amending the NTA several times, the government only

charged Ngaeth with removability pursuant to subsection (G) of

§ 1101(a)(43), omitting subsection (U) from the NTA. But, as Ngaeth conceded at the oral argument, he did not challenge the defective NTA before

the BIA, and so has not exhausted any notice issues arising from the NTA.

See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th

Cir. 2004). Furthermore, Ngaeth chose to forego an opportunity to challenge an apparent deficiency in the NTA after the BIA remanded his case

to the IJ for further proceedings on an unrelated issue. We, therefore,

decline to address the notice issue in this Opinion. 

NGAETH v. MUKASEY 13605
been removed on the basis of “clear, unequivocal, and convincing evidence,” see 8 U.S.C. § 1229a(b)(5); and that (2)

his conviction did not constitute an aggravated felony. The IJ

declined to reopen, and the BIA affirmed. This Petition followed. 

II. STANDARD OF REVIEW

We have jurisdiction to review final orders of removal for

commission of an aggravated felony and motions to reopen

such orders, “to the extent that the petition for review raises

constitutional claims or questions of law.” Vizcarra-Ayala v.

Mukasey, 514 F.3d 870, 872 (9th Cir. 2008) (citing 8 U.S.C.

§ 1252(a)(2)(C)-(D)); see Ghahremani v. Gonzales, 498 F.3d

993, 998 & n.5 (9th Cir. 2007) (applying this jurisdictional

analysis to a motion to reopen). “We review the BIA’s ruling

on the motion to reopen for an abuse of discretion and will

reverse the denial of the motion to reopen only if the BIA

acted arbitrarily, irrationally, or contrary to law.” See Nath v.

Gonzales, 467 F.3d 1185, 1187 (9th Cir. 2006) (internal quotation marks omitted) (reviewing, on this standard, the denial

of a motion to reopen premised on the legal adequacy of the

petitioner’s convictions as the basis for removal). 

It would be contrary to law to remove Ngaeth if he did not

commit an aggravated felony offense. We review de novo

whether a particular offense is an “aggravated felony” under

the INA. Vizcarra-Ayala, 514 F.3d at 873; Ruiz-Morales v.

Ashcroft, 361 F.3d 1219, 1221 (9th Cir. 2004).

III. DISCUSSION

Ngaeth raises only one issue on appeal: That the IJ and the

BIA erred in concluding that he is an aggravated felon. Specifically, he claims that his conviction for burglary does not

amount to an “aggravated felony” under the INA. Ngaeth continues to rely on Ye v. INS, which holds that a section 459

vehicular burglary conviction is neither a burglary offense nor

13606 NGAETH v. MUKASEY
a crime of violence (which are both aggravated felonies under

the INA). See Ye, 214 F.3d at 1131-34. Ye left unanswered,

however, whether a section 459 conviction nevertheless constitutes an attempted theft offense for purposes of the aggravated felony definition provided in 8 U.S.C. § 1101(a)

(43)(U). 

[1] The two circuits that have addressed this issue have

both concluded, or suggested, that a vehicular burglary can

qualify as an attempted theft offense under the INA. See

United States v. Martinez-Garcia, 268 F.3d 460, 462 (7th Cir.

2001), cert. denied, 534 U.S. 1149 (2002); Lopez-Elias v.

Reno, 209 F.3d 788, 792 n.7 (5th Cir. 2000), cert. denied, 531

U.S. 1069 (2001). As discussed below, our analysis under

Taylor v. United States, 495 U.S. 575, 602 (1990), compels a

similar result in this case. 

A. Taylor’s Categorical Approach

Under the categorical approach first articulated in Taylor,

an offense is an aggravated felony if “the full range of conduct covered by the [criminal statute] falls within the meaning” of the relevant definition of an aggravated felony.

Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir. 2008) (quoting Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002)). Thus

we must decide whether section 459 categorically describes

an attempted theft offense under Taylor. The generic definition of “theft offense” as it is used in section 1101(a)(43)(G)

of the INA is “a taking of property or an exercise of control

over property without consent with the criminal intent to

deprive the owner of rights and benefits of ownership, even

if such deprivation is less than total or permanent.” Penuliar,

528 F.3d at 611 (citing United States v. Vidal, 504 F.3d 1072,

1077 (9th Cir. 2007) (en banc)). 

[2] We have not previously stated a generic definition of

“attempt” for the purposes of 8 U.S.C. § 1101(a)(43)(U),

although we have sometimes made references to that aggraNGAETH v. MUKASEY 13607
vated felony category. See, e.g., Rebilas v. Mukasey, 527 F.3d

783, 787 (9th Cir. 2008); Kharana v. Gonzales, 487 F.3d

1280, 1282 n.3 (9th Cir. 2007); Li v. Ashcroft, 399 F.3d 892,

896 n.8 (9th Cir. 2004). In the sentencing context, we generically define “attempt” as containing two elements: “(1) an

intent to engage in criminal conduct, coupled with (2) an

overt act constituting a substantial step toward the commission of the crime.” United States v. Morales-Perez, 467 F.3d

1219, 1222 (9th Cir. 2006). This definition is consistent with

that used in the immigration context by the Second and Seventh Circuits, see Martinez-Garcia, 268 F.3d at 465; Sui v.

INS, 250 F.3d 105, 115 (2d Cir. 2001), and we employ it here.

[3] In this case, then, section 459 describes an attempted

theft offense if it criminalizes an intent to commit a theft

offense, of the sort generically defined by Penuliar and earlier

cases, coupled with an overt act constituting a substantial step

towards the commission of the offense. Applying this definition, we hold that section 459 does not categorically define an

attempted theft offense. It “reaches both conduct that would

constitute an aggravated felony and conduct that would not.”

See Penuliar, 528 F.3d at 608; Ye, 214 F.3d at 1133. 

We need not look far to so determine. Section 459 may be

violated by an attempt to commit a crime other than theft —

for example, by breaking into a vehicle with the intent to

commit arson. Obviously, such a crime has nothing to do with

attempted theft. “[W]here, as here, the state statute plainly and

specifically criminalizes conduct outside the contours of the

federal definition, we do not engage in judicial prestidigitation by concluding that the statute ‘creates a crime outside the

generic definition of a listed crime.’ ” Cerezo v. Mukasey, 512

F.3d 1163, 1167 (9th Cir. 2008) (quoting Gonzales v. DuenasAlvarez, 127 S. Ct. 815, 822 (2007); see also Vidal, 504 F.3d

at 1082. In sum, section 459 does not categorically define an

attempted theft offense under 8 U.S.C. § 1101(43)(U). Cf.

Morales-Perez, 467 F.3d at 1222.

13608 NGAETH v. MUKASEY
B. Taylor’s Modified Categorical Approach

[4] “Where a state statute is categorically broader than the

generic definition of a crime, we employ a modified categorical approach.” Navarro-Lopez v. Gonzales, 503 F.3d 1063,

1073 (9th Cir. 2007) (en banc). Under this approach, we conduct “a limited examination of documents in the record of

conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the

generically defined crime,” without reviewing the particular

facts underlying the conviction. Chang, 307 F.3d at 1189. 

We must first determine whether Ngaeth’s conviction contains the elements of attempted theft. The Fifth and Seventh

Circuits, considering similar statutes, have so indicated. See

Martinez-Garcia, 268 F.3d at 462; Lopez-Elias, 209 F.3d at

792 n.7. 

In Lopez-Elias v. Reno, the petitioner was charged with

vehicular burglary with the intent to commit theft. See LopezElias, 209 F.3d at 792 n.7. The Fifth Circuit held that the petitioner had not actually committed a theft offense, because he

pled guilty to having an intent to commit theft but not to having stolen anything. Id. at 792. The court noted, however, that

the petitioner “could have been removed . . . based alternatively on the theory that burglary of a vehicle with intent to

commit theft is tantamount to an offense of attempted theft.”

Id. at 792 n.7 (emphasis in original). 

In Martinez-Garcia, the petitioner pled guilty to vehicular

burglary, admitting that he “without authority, knowingly

entered a motor vehicle . . . with the intent to commit therein

a theft.” Martinez-Garcia, 268 F.3d at 462. In the Seventh

Circuit’s view, this conduct was “a substantial step toward the

commission of the theft.” Id. at 466. The conviction was,

therefore, an attempted theft offense and thus an aggravated

felony. 

NGAETH v. MUKASEY 13609
[5] We agree with the reasoning of our sister circuits. Cf.

Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004)

(noting that, “[i]n the immigration context, . . . the need for

national uniformity is paramount”). Although we are mindful

of the Second Circuit’s warning that inchoate crimes like

attempt are highly fact-specific, with the result that many will

not be amenable to categorical analysis, see Sui, 250 F.3d at

119, it is clear that entering a “vehicle . . . when the doors are

locked,” Cal. Penal Code § 459, clearly constitutes a substantial step towards committing a theft. When that entry is committed with an intent to “commit grand or petit larceny,” as

the statute provides, our generic definition of attempted theft

is satisfied. We, therefore, hold that a conviction for entering

a locked vehicle with the intent to commit theft constitutes an

attempted theft offense for purposes of the aggravated felony

definition. 

[6] Having held that entering a locked vehicle with intent

to commit theft is an attempted theft offense, we must now

determine whether Ngaeth pled to those elements of section

459. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th

Cir. 2003) (noting that “charging documents in combination

with a signed plea agreement, jury instructions, guilty pleas,

transcripts of a plea proceeding, and the judgment may suffice

to document the elements of conviction” under the modified

categorical approach). Ngaeth pled guilty to Count 1 of the

criminal complaint, which provided, in pertinent part, that he

“enter[ed] a locked motor vehicle, . . . with the intent to commit theft, in violation of Penal Code Section 459.” Ngaeth further admitted the facts supporting this specific charge in his

written plea and waiver-of-right form.

[7] We have the “defendant’s own admissions . . . [to] confirm[ ] the factual basis for a valid plea” to the elements of the

generic offense of attempted theft. See Penuliar, 523 F.3d at

971 (quoting Vidal, 504 F.3d at 1088-89). Ngaeth is, therefore, an aggravated felon under the modified categorical

approach. 

13610 NGAETH v. MUKASEY
IV. CONCLUSION

[8] We conclude that Ngaeth is removable for having committed the aggravated felony offense of attempted theft.

Accordingly, we deny his Petition.

PETITION DENIED. 

NGAETH v. MUKASEY 13611