Ortgea-Mendez v. Gonzales

• Decision Date: 15 June 2006
• Docket Number: No. 03-74711.,03-74711.
• Parties: Roberto ORTEGA-MENDEZ, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.3d 1010

Roberto ORTEGA-MENDEZ, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-74711.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2006.

Filed June 15, 2006.

COPYRIGHT MATERIAL OMITTED

James F. Smith, Davis, California, and Christopher J. Todd, Mill Valley, CA, for the petitioner.

Alison R. Drucker and Margaret J. Perry, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-345-757.

Before: THOMPSON, BERZON, and CALLAHAN, Circuit Judges.

BERZON, Circuit Judge:

An Immigration Judge (IJ) determined that Roberto Ortega-Mendez's 1998 conviction for battery under California Penal Code section 242 was a "crime of domestic violence" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). As a result, the IJ declared Ortega-Mendez ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) as an alien who has "been convicted of an offense under section . . . 1227(a)(2)." 8 U.S.C. § 1229b(b)(1)(C). Ortega-Mendez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the IJ's decision.

For an offense to be a "crime of domestic violence" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i), it must, inter alia, be a "crime of violence" within the meaning of 18 U.S.C. § 16. See 8 U.S.C. § 1227(a)(2)(E)(i). We hold that battery under California Penal Code section 242 is not categorically a "crime of violence" within the meaning of 18 U.S.C. § 16. The government does not contend that we should reach a different result regarding whether Ortega-Mendez's 1998 offense is a "crime of violence" under the modified categorical approach. We therefore conclude that Ortega-Mendez's 1998 offense is not a "crime of violence" within the meaning of 18 U.S.C. § 16 and so is not a "crime of domestic violence" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

I.

Ortega-Mendez entered the United States without inspection around 1986. In 1998, he pleaded nolo contendere to battery under California Penal Code section 242.¹ Shortly thereafter the Immigration and Naturalization Service (INS) filed a Notice to Appear, charging Ortega-Mendez with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without having been admitted or paroled. Ortega-Mendez conceded removability but applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1), or, in the alternative, voluntary departure.

The INS subsequently moved to pretermit the application for cancellation of removal, arguing that Ortega-Mendez's 1998 battery conviction was a "crime of domestic violence" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). An alien is ineligible for cancellation of removal under § 1229b(b)(1)(C) if he has been "convicted of an offense under section . . . 1227(a)(2)." 8 U.S.C. § 1229b(b)(1)(C).

The IJ granted the INS's motion. The IJ found, first, that Ortega-Mendez's 1998 battery offense was a "crime of violence" within the meaning of 18 U.S.C. § 16(a), reasoning:

Subparagraph A of [18 U.S.C. § 16] defines a crime of violence as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. Turning to California Penal Code Section 242, under which the respondent was convicted, that section defines battery as any willful and unlawful use of force or violence upon the person of another.

Having compared Subparagraph A of 18 U.S.C. Section 16 and battery as it is defined in Section 242 of the California Penal Code, the Court concludes that the respondent's conviction meets the definition of a crime of violence as it is defined in the U.S.Code.

The IJ then found that the documents of conviction established that the 1998 offense was "domestic" in nature. She concluded that Ortega-Mendez's 1998 offense was a "crime of domestic violence" within the meaning of § 1227(a)(2)(E)(i), and thus that Ortega-Mendez was ineligible for cancellation of removal under § 1229b(b)(1). She did, however, grant Ortega-Mendez voluntary departure.

The BIA affirmed in a streamlined decision. Ortega-Mendez timely petitions for review of that decision. He argues that his 1998 battery conviction was not a "crime of violence" within the meaning of 18 U.S.C. § 16 and therefore was not a "crime of domestic violence" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). We agree with Ortega-Mendez and therefore grant the petition.²

II.

Our jurisdiction is governed by 8 U.S.C. § 1252. Section 1252(a)(2)(B)(i) states that "except as provided in subparagraph (D), . . . no court shall have jurisdiction to review. . . any judgment regarding the granting of relief under section. . . 1229b . . . of this title." Section 1252(a)(2)(D) provides that "[n]othing in subparagraph (B) . . . shall be construed as precluding review of . . . questions of law raised upon a petition for review filed with an appropriate court of appeals."³ Whether Ortega-Mendez's 1998 offense is a "crime of violence" within the meaning of 18 U.S.C. § 16 and hence can be a "crime of domestic violence" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i) is a question of law. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1142 (9th Cir.2001). We therefore have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to decide that question. See Lisbey v. Gonzales, 420 F.3d 930, 932 (9th Cir.2005).

Because the BIA streamlined the case, we review the IJ's opinion as the final agency decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We do not defer to BIA interpretations of state law or of provisions of the federal criminal code referenced within, but not part of, the Immigration and Nationality Act. See Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005); Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th Cir.2004).

III.

A.

Under 8 U.S.C. § 1229b(b)(1)(C), an alien who is not a legal permanent resident is ineligible for cancellation of removal if he has been "convicted of an offense under' section . . . 1227(a)(2) . . . of this title, subject to paragraph (5)."⁴ Section 1227(a)(2)(E)(i), the subsection of § 1227(a)(2) pertinent here, provides as follows:

Any alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

8 U.S.C. § 1227(a)(2)(E)(i). An individual convicted of a "crime of domestic violence" within the meaning of § 1227(a) (2)(E)(i) is ineligible for cancellation of removal pursuant to § 1229b(b)(1)(C) whether or not he was admitted to the United States at the time of his predicate offense. See Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 653 (9th Cir.2004).

In Tokatly v. Ashcroft, we observed that to determine whether an individual was convicted of a "crime of domestic violence" within the meaning of § 1227(a)(2)(E)(i), we must conclude (1) "that [the] crime was. . . one of `violence,'" and (2) "that the violence was `domestic' within the meaning of that section." 371 F.3d 613, 619 (9th Cir.2004). For the former inquiry, § 1227(a)(2)(E)(i) directs us to determine whether the offense at issue is a "crime of violence" within the meaning of 18 U.S.C. § 16. See 8 U.S.C. § 1227(a)(2)(E)(i) (stating that to qualify as a "crime of domestic violence," a crime must be, inter alia, a "crime of violence (as defined in section 16 of Title 18)").

The government argues that Ortega-Mendez's 1998 battery offense is a "crime of violence" because battery under California Penal Code section 242 is categorically a "crime of violence" within the meaning of 18 U.S.C. § 16. Applying the categorical approach as established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we disagree.

Under 18 U.S.C. § 16, a "crime of violence" is

(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.

18 U.S.C. § 16.

When the predicate offense at issue is an offense under state law, our prior cases have been less than clear about how the word "felony" in § 16(b) is defined. On the one hand, "Congress has a longstanding practice of equating the term `felony' with offenses punishable by more than one year's imprisonment." United States v. Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir.2002); see also 18 U.S.C. § 3559(a) (providing that unless otherwise indicated, a federal offense is a felony if and only if it is punishable by a term of imprisonment exceeding one year); United States v. Olvera-Cervantes, 960 F.2d 101, 103-04 (9th Cir.1992) (interpreting the word "felony" as used in a prior version of U.S.S.G. § 2L1.2, which did not expressly define that term, to be "a conviction under a statute, state or federal, with a statutory maximum penalty in excess of one year"); cf. United States v. Alvarez-Gutierrez, 394 F.3d 1241, 1244-45 (9th Cir.2005) (ho...