Teposte v. Eric H. Holder Jr.

• Decision Date: 20 January 2011
• Docket Number: No. 08–72516.,08–72516.
• Citation: 632 F.3d 1049
• Parties: Cirilo Aaron COVARRUBIAS TEPOSTE, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

632 F.3d 1049

11 Cal. Daily Op. Serv. 843

2011 Daily Journal D.A.R. 1081

Cirilo Aaron COVARRUBIAS TEPOSTE, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08–72516.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 2, 2010.Filed Oct. 26, 2010.Amended Jan. 20, 2011.

Michael K. Mehr (argued) and Rachael E. Keast, Law Office of Michael K. Mehr, Santa Cruz, CA, for petitioner Cirilo Aaron Covarrubias Teposte.Manuel Palau (argued), Tony West, and Terri J. Scadron, United States Department of Justice, Civil Division, Washington, D.C., for respondent Eric H. Holder Jr., Attorney General.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078–469–158.Before: DIARMUID F. O'SCANNLAIN, RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.

ORDER

Petitioner's Motion to Amend Opinion is GRANTED in part. The opinion filed on October 26, 2010 and published at 623 F.3d 1094, is amended as follows.

The opinion concludes with: “We therefore grant the petition for review. PETITION GRANTED.” These two sentences shall be deleted and replaced with the following language:

“We therefore grant the petition for review and vacate the order of removal.

PETITION GRANTED, ORDER VACATED.”

Footnote 2 shall remain unchanged and shall follow the final sentence in the opinion as amended.

Petitioner's motion for permission to file a supplemental reply to response to motion to amend opinion is denied. No petitions for rehearing or rehearing en banc will be entertained.

IT IS SO ORDERED.

OPINION

GOULD, Circuit Judge:

Cirilo Aaron Covarrubias Teposte (hereafter “Covarrubias”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge's (“IJ”) order of removal based on a conviction of an aggravated felony. We must decide whether the California offense of shooting at an inhabited dwelling or vehicle is categorically a crime of violence as that term is defined in 18 U.S.C. § 16(b) and therefore is an aggravated felony making Covarrubias removable. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and we grant the petition for review.

I

Covarrubias is a native and citizen of Mexico. He was admitted to the United States as a lawful permanent resident on February 15, 2002. On April 23, 2003, Covarrubias was convicted in state court in California of the offense “Shooting at Inhabited Dwelling or Vehicle” in violation of California Penal Code (“CPC”) § 246. He was sentenced to a term of imprisonment of seven years.

The government initiated removal proceedings against Covarrubias on March 12, 2007 by filing a Notice to Appear. The government charged him as removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)), alleging that his conviction under CPC § 246 was an aggravated felony in the form of a crime of violence for which the term of imprisonment was at least one year.

On February 28, 2008, Covarrubias appeared at a hearing before the IJ and contested removability, denying the allegations pertaining to the California conviction. The IJ sustained the charge of removability in light of the conviction documents submitted by the Government ¹ and the IJ's conclusion that the conviction was an aggravated felony. Covarrubias did not apply for relief from removal. The IJ issued a memorandum and order setting out his reasoning. The IJ determined that § 246 was categorically a crime of violence under both 18 U.S.C. § 16(a) and (b) because “the crime of discharging a firearm at an occupied vehicle quite obviously has as an element the use or attempted use of force against the person or property of another, and also poses a substantial risk that force will be actively employed against the person or property of another.”

Covarrubias appealed the IJ's decision to the BIA, and the BIA dismissed the appeal on May 15, 2008. The BIA agreed with the IJ that CPC § 246 qualifies as a “crime of violence” and therefore as an aggravated felony, but the BIA relied on 18 U.S.C. § 16(b) only and did not address § 16(a). The BIA affirmed the IJ's conclusion that Covarrubias was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Covarrubias filed a petition for review in our court, arguing that, contrary to the BIA's conclusion, his conviction under CPC § 246 is not categorically a crime of violence under § 16(b).

II

We review de novo whether a criminal conviction is a crime of violence and therefore an aggravated felony rendering an alien removable. Suazo Perez v. Mukasey, 512 F.3d 1222, 1225 (9th Cir.2008). The BIA is not charged with administering 18 U.S.C. § 16 and its interpretation of that statute gains no deference. Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1126 n. 7 (9th Cir.2006) (en banc) (citing Oyebanji v. Gonzales, 418 F.3d 260, 262 (3d Cir.2005)).

III

Covarrubias is removable if his conviction in California for shooting at an inhabited dwelling or vehicle constitutes an aggravated felony in the form of a crime of violence for which the term of imprisonment is at least one year. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F). A “crime of violence” is either:

(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. Because the BIA rested its decision in this case on § 16(b) and did not rely on § 16(a), we do not address § 16(a) here.

Covarrubias does not dispute that he was sentenced to seven years' imprisonment for his California offense, and that California law treats his offense as a felony. We have yet to establish whether the word “felony” in § 16(b) is defined as an offense punishable by more than one year in prison, or alternatively as an offense that is characterized as a felony under state law. Ortega–Mendez v. Gonzales, 450 F.3d 1010, 1015 (9th Cir.2006). We need not decide this question because, under either approach, Covarrubias's offense is a felony and satisfies that element of § 16(b). See id. (declining to decide the question of which definition applied because the result would be the same under either definition); see also United States v. Campos–Fuerte, 357 F.3d 956, 959 (9th Cir.2004) (concluding that a conviction for a California “wobbler” offense, which could be either a felony or misdemeanor, was a felony in light of the sentence imposed), amended by 366 F.3d 691 (9th Cir.2004).

The question is whether CPC § 246, “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(b). We apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and ask whether the full range of conduct proscribed by the statute meets the ordinary, contemporary, and common meaning of § 16(b). See Fernandez–Ruiz, 466 F.3d at 1125; Ruiz–Morales v. Ashcroft, 361 F.3d 1219, 1222 (9th Cir.2004). If the statute of conviction is broader in scope than the federal provision, then ordinarily we turn to the modified categorical approach and consult certain documentation in the record to determine whether the conviction entailed admission to or proof of the necessary elements. See United States v. Pallares–Galan, 359 F.3d 1088, 1099 (9th Cir.2004); Fernandez–Ruiz, 466 F.3d at 1132. However, because the BIA did not apply the modified categorical approach and the government did not raise it on appeal, we limit our analysis to the categorical approach. See Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir.2008) (“[W]here, as here, the government has not asked us to apply the modified categorical approach, we ‘consider only whether the categorical approach is satisfied.’ ”) (quoting Mandujano–Real v. Mukasey, 526 F.3d 585, 589 (9th Cir.2008)).

In Leocal v. Ashcroft, the Supreme Court addressed the meaning of § 16(a) and explained that the phrase “use ... of physical force” “requires active employment” of force and suggests a “higher degree of intent than negligent or merely accidental conduct.” 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). The Court further held that the words “use” and “physical force” in § 16(b) should be given an “identical construction” to § 16(a), again “requiring a higher mens rea than merely accidental or negligent conduct.” Id. at 11, 125 S.Ct. 377. The “reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime.” Id. at 10, 125 S.Ct. 377.

Thus § 16(b) “covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.” Id. at 10, 125 S.Ct. 377. The Court in Leocal cited burglary as the “classic example” of a § 16(b) offense, explaining that it “would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.” Id.

In Fernandez–Ruiz, we joined several other circuits in holding that the reasoning of Leocal means that crimes involving the reckless use of force do not qualify under § 16 as a crime of violence. 466 F.3d at 1129. There we held that “neither recklessness nor gross negligence is a sufficient mens rea to establish that a conviction is for a crime of violence” under § 16. Id. at 1130. We have since interpreted the en banc decision in Fernandez–Ruiz to mean that “reckless use of force is not...