On November 19, 2021, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a case on remand from the Ninth Circuit Court of Appeals. The case had last been before the BIA in January 2019, at which time it dismissed Respondent’s appeal from the decision of an Immigration Judge (IJ), which had concluded that his conviction for carjacking in violation of California Penal Code (CPC) §215(a) was a conviction for an aggravated felony that rendered him removable. A petition for review to the Ninth Circuit brought about the above-referenced remand and, thus, this decision.
Respondent was admitted to the U.S. as a nonimmigrant visitor in 1999. Fourteen years later, he was convicted of carjacking under §215(a) and sentenced to 5 years imprisonment. He was subsequently placed into removal proceedings and charged per INA §237(a)(2)(a)(A)(iii) as one convicted of an aggravated felony crime of violence for which the term of imprisonment is at least one year, as defined in INA §101(a)(43)(F). However, this charge was withdrawn and replaced with one under the same provision but for aggravated felony theft per INA §101(a)(43)(G); Respondent was also charged under INA §237(a)(1)(B) as one present in the U.S. without lawful status. The IJ sustained the §237(a)(1)(B) charge and also found Respondent removable under §237(a)(2)(A)(iii) as an aggravated felon. As the decision noted, he “declined to apply for any form of relief or protection from removal and affirmatively waived any application for protection under the Convention Against Torture (CAT),” so the IJ ordered Respondent removed.
The Board dismissed the initial appeal, finding the §215(a) conviction to be a categorical aggravated felony theft offense per INA 101(a)(43)(G) but did not address whether it qualified as an aggravated felony crime of violence under §101(a)(43)(F). After the petition for review was filed with the Ninth Circuit, the Government filed an unopposed motion to remand, requesting that the BIA further consider whether the §215(a) offense qualifies as aggravated felony theft and “address any other issues relevant to the disposition of this case.” On remand, Respondent contended that his carjacking offense is not for aggravated felony theft, and he is therefore not removable under §237(a)(2)(A)(iii) or ineligible for relief or protection from removal. He requested that the record be remanded so that he could apply for relief before the IJ.
As the parties did not dispute that Respondent remains removable as charged per §237(a)(1)(B), the opinion concluded that the Board “need not address whether he was convicted of an aggravated felony theft offense that renders him removable under INA §237(a)(2)(A)(iii)”; the only “remaining issue” was whether Respondent is eligible for relief from removal such that remand is warranted. The BIA thus held that the carjacking conviction is categorically an aggravated felony crime of violence per §101(a)(43)(F) and, in light of this conviction and the length of the sentence imposed, Respondent is statutorily ineligible for relief and protection from removal. Additionally, because Respondent is removable, ineligible for relief, and affirmatively waived any applications for CAT protection, his requests for remand and dismissal of his appeal were denied.
At the beginning of its analysis, the Board noted that to determine whether this carjacking offense is an aggravated felony, it employs a “categorical approach” to ascertain whether the offense is comparable to a crime of violence under 18 U.S.C. §16(a). The Ninth Circuit, which has jurisdiction over California, had issued several precedents analyzing whether a §215 carjacking conviction is categorically a crime of violence per §101(a)(43)(F). The first, Nieves-Medrano v Holder, 590 F.3d 1057(9th Cir. 2010), was later abrogated by Solorio-Ruiz v Sessions, 881 F.3d 733 (9th Cir. 2018), which was, in turn, itself abrogated by the Supreme Court in Stokeling v. United States, 139 S.Ct. 544 (2019). The BIA further explained that, following Nieves-Medrano, the Supreme Court Issued Johnson v. United States, 559 U.S. 133 (2010), which addressed the degree of force necessary to commit a “violent felony” under 18 U.S.C. §924(e)(2)(B)(i); that section defines a “violent felony” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” As to this provision, the Court held that the phrase “physical force” means violent force, i.e., force capable of causing physical pain or injury to another. As a result, the BIA had concluded in Matter of E. Velasquez, 25 I&N Dec. 278 (BIA 2010) that Johnson’s interpretation of the “physical force” requirement in §924(e)(2)(B)(i) controls its interpretation of the “physical force” requirement in §16(a). Similarly, relying on Johnson, the Ninth Circuit in Solorio-Ruiz abrogated its holding in Nieves-Medrano. Subsequently, stated the Board, the Supreme Court held in Stokeling that the “violent force” necessary to commit a “violent felony” under necessary to commit a “violent felony” under §924(e)(2)(B)(i) “includes the amount of force necessary to overcome a victim’s resistance.”
However, in United States v. Baldon, 956 F.3d 1115 (9th Cir. 2019), the Ninth Circuit had found Solorio-Ruiz irreconcilable with Stokeling. Baldon looked to §4B1.2(a) of the Federal Sentencing Guidelines, which defined a “crime of violence” as an offense that “had an element the use, attempted use, or threatened use of physical force against the person of another.” Because CPC §215 may be violated through fear of injury to the property alone, without fear of injury to a person, the court found that the penal code criminalizes a broader range of conduct than the federal sentencing definition covers. As such, Baldon held that §215 is not a categorical match for the definition of a “crime of violence” at §4B1.2(a)(1) of the sentencing guidelines. The BIA found that, although Baldon controls in the sentencing context, “it did not address the relevant issue in this case: whether carjacking under section 215(a) of the California Penal Code is a crime of violence under §16(a)” and, thus, an aggravated felony per §101(a)(43)(F).
Although a carjacking accomplished by fear of injury to property falls outside the §4B1.2(a)(1) definition of a crime of violence, the Board held that it “falls squarely within the broader definition of a crime of violence at §16(a), which covers crimes against both persons and property.” Because Respondent’s statute of conviction has as an element, the use, attempted use, or threatened use of physical force against the person or property of another, the BIA found that his §215(a) per §16(a). Additionally, Respondent did not dispute that he had been sentenced to 5 years of imprisonment and only 1 year of imprisonment is required by §101(a)(43)(F). The decision concluded that remand is not warranted as Respondent is removable as charged under §237(a)(1)(B), his aggravated felony conviction renders him ineligible for relief and protection from removal, and he affirmatively waiveed his chance to seek deferral under CAT. The appeal was therefore dismissed. Matter of Valenzuela, 28 I&N Dec. 418 (BIA 2021).
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