Penuliar v. Gonzales

• Citation: 435 F.3d 961
• Decision Date: 12 January 2005
• Docket Number: No. 03-71578.,03-71578.
• Parties: Nopring Paulino PENULIAR, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

435 F.3d 961

Nopring Paulino PENULIAR, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-71578.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2004.

Filed January 12, 2005.

Amended January 23, 2006.

Melanie Jo Triebel, O'Melveny & Myers LLP, Newport Beach, CA, for the petitioner.

Nicole Nardone (argued) and Jennifer Paisner (briefed), Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A44-948-659.

Before BROWNING, PREGERSON, and BERZON, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR PANEL REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION

PREGERSON, Circuit Judge.

ORDER

The Opinion filed January 12, 2005, slip op. 453, and appearing at 395 F.3d 1037, is amended as follows:

1. At slip op. 453, add asterisk footnote in caption following "ALBERTO R. GONZALES." Asterisk footnote shall read, "Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States, pursuant to Fed. R.App. P. 43(c)(2)."

2. Change the citation at slip op. 465 following the sentence that ends, "... a theft offense under the INA." to read, "See Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 (9th Cir.2005)."

3. Change the citation at slip op. 465 following the sentence that ends, ". . . falls outside the generic definition of theft offense." to read, "Id."

4. Add footnote 6 at slip op. 466 and adjust other footnotes accordingly following the sentence that ends, "... qualify as a `theft offense' within the meaning of 8 U.S.C. § 1101(a)(43)(G)." The added footnote 6 reads:

In its petition for rehearing, the government argues that aiding and abetting liability is included in the generic definition of a "theft offense." See 8 U.S.C. § 1101(a)(43)(G). That assertion, however, is foreclosed by our decision in Martinez-Perez, 417 F.3d at 1028 (holding that a conviction for grand theft under California Penal Code § 487(c) was not a "theft offense" within the meaning of the INA because a defendant could "be convicted of a substantive violation ... based on an aiding and abetting theory alone"), by which we are bound. See Rotec Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1122 n. 3 (9th Cir.2003) ("A three-judge panel generally has no power to overrule a decision of this court.").

5. Change the citation at slip op. 466 that precedes "B. Modified Categorical Approach" to read, "See Martinez-Perez, 417 F.3d at 1027-28."

The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED. No further petitions shall be entertained.

OPINION

Nopring Paulino Penuliar petitions for review of a decision of the Board of Immigration Appeals ("BIA"). Penuliar, a lawful permanent resident, pled guilty to two counts of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a). Classifying both convictions as "aggravated felonies" under the Immigration and Nationality Act ("INA"), an Immigration Judge ("IJ"), affirmed by the BIA, found Penuliar ineligible for cancellation of removal and voluntary departure and ordered that Penuliar be deported pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Because we conclude that Penuliar's convictions do not constitute "aggravated felonies" under the INA, we grant his petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Nopring Paulino Penuliar, a citizen of the Philippines, was admitted to the United States on June 12, 1995, as a lawful permanent resident. On June 30, 2000, Penuliar pled guilty to one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and was sentenced to two years' imprisonment. On December 13, 2000, Penuliar pled guilty to another count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a). He was sentenced to three years' imprisonment for each charge, to be served concurrently.

While serving his sentence in state prison, the Immigration and Naturalization Service ("INS")¹ served Penuliar with a notice to appear.² In the notice to appear, the INS alleged that Penuliar was removable for being convicted of "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year," an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). The INS also alleged that Penuliar was removable for being convicted of "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year," an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G).

At Penuliar's removal hearing, the government introduced into evidence a felony complaint charging Penuliar with, inter alia, one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and a corresponding abstract of judgment showing that Penuliar pled guilty to that count. The government also introduced a criminal information charging Penuliar with, inter alia, one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a), and a corresponding abstract of judgment showing that Penuliar pled guilty to both counts. Finally, the government introduced a probation report detailing the conduct underlying the charges in the criminal information.

Based on this evidence, the IJ concluded that Penuliar's two convictions for unlawful driving or taking of a vehicle were "theft offense[s]" under 8 U.S.C. § 1101(a)(43)(G), and that Penuliar's conviction for evading an officer was a "crime of violence" under 8 U.S.C. § 1101(a)(43)(F). Accordingly, the IJ ruled that Penuliar was removable as an "aggravated felon" under 8 U.S.C § 1227(a)(2)(A)(iii), and therefore ineligible for cancellation of removal and voluntary departure. See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1).

On March 31, 2003, the BIA summarily affirmed the decision of the IJ. See 8 C.F.R. § 1003.1(e)(4). Penuliar timely filed this petition for review.

JURISDICTION AND STANDARD OF REVIEW

This court lacks jurisdiction to review a final order of removal against an alien who has committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). Nonetheless, "[b]ecause the issue in this appeal is whether [the petitioner] committed an aggravated felony, and because we have jurisdiction to determine our own jurisdiction, the jurisdictional question and the merits collapse into one." Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000) (citation omitted).

We review de novo whether a particular offense is an aggravated felony. Id.

DISCUSSION

To determine whether a conviction is an "aggravated felony" under the INA, we employ the two step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). First, "we look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43)." Id. "Under this `categorical approach,' an offense qualifies as an aggravated felony `if and only if the full range of conduct covered by the[criminal statute] falls within the meaning of that term.'" Id. (quoting United States v. Baron-Medina, 187 F.3d 1144, 1146(9th Cir. 1999)).

However, when the statute of conviction reaches both conduct that would constitute an aggravated felony and conduct that would not, we follow a "modified categorical approach." See id.; United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (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." Chang, 307 F.3d at 1189. "[W]e do not, however, look to the particular facts underlying the conviction." Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 (9th Cir.2003) (quoting Ye, 214 F.3d at 1132).

I. Evading an Officer

A. Categorical Approach

Under 8 U.S.C. § 1101(a)(43)(F), the term "aggravated felony" means "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." Title 18 U.S.C. § 16, in turn, defines the term "crime of violence" to mean:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

We have construed 18 U.S.C. § 16 as requiring more than mere negligent conduct. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1145 (9th Cir.2001) ("[W]e hold that the presence of the volitional `use... against' requirement in both prongs of 18 U.S.C. § 16 means that a defendant cannot 815 commit a `crime of violence' if he negligently—rather than intentionally or recklessly—hits someone or something...."). Thus, in Trinidad-Aquino we held that because California's driving...