Quijada-Aguilar v. Lynch

Decision Date01 September 2015
Docket NumberNo. 12–70070.,12–70070.
PartiesWalter Antonio QUIJADA–AGUILAR, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Robert E. Dunn (argued), Frederick S. Chung, and Shawn Liu, Gibson, Dunn & Crutcher, LLP, Palo Alto, California, for Petitioner.

Kathryn Deangelis (argued), Lisa Morinelli, Anthony W. Norwood, Senior Litigation Counsel, and Stuart F. Delery, Acting Assistant Attorney General, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092–536–869.

Before: HARRY PREGERSON, FERDINAND F. FERNANDEZ, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

Walter Quijada–Aguilar seeks review of the Board of Immigration Appeals' (“BIA”) denial of his applications for withholding of removal under the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”), as well as deferral of removal under CAT. We grant his petition for review and remand for further proceedings.

Background

Walter Quijada–Aguilar (Quijada–Aguilar), a citizen of El Salvador, came to the United States in the mid–1970's as a young boy. His family was fleeing violence in El Salvador, where his father and two uncles were military police officers. In 1992, he was convicted of voluntary manslaughter, in violation of California Penal Code (“CPC”) § 192(a), and was sentenced to eleven years of imprisonment.

Quijada–Aguilar was placed in removal proceedings on September 19, 2005. He conceded removability, and sought several forms of relief from removal. As relevant to this appeal, he sought withholding of removal under the INA and CAT, and deferral of removal under CAT based on anticipated torture in El Salvador due to both his status as a criminal deportee and his affiliation with his family members who served in the Salvadoran military. He asserted that his two uncles had been murdered by guerillas due to their military membership, and his father has been missing since he returned to El Salvador shortly after the family's arrival in the United States.

The IJ found Quijada–Aguilar to be ineligible for withholding of removal and denied CAT relief. The BIA conducted an independent review of the record and affirmed. The BIA concluded that Quijada–Aguilar's voluntary manslaughter conviction is a categorical crime of violence under 18 U.S.C. § 16(b), making it an aggravated felony. 8 U.S.C. § 1101(a)(43)(F). Because Quijada–Aguilar was sentenced to eleven years for this offense, his conviction constitutes a per se “particularly serious crime,” rendering him ineligible for withholding of removal. Id. § 1231(b)(3)(B)(iv) (stating that aggravated felonies resulting in a sentence of at least five years' imprisonment constitute “particularly serious crime[s]).

Regarding deferral of removal under CAT, the BIA concluded that the record lacked sufficient objective evidence to demonstrate a likelihood of future torture based on Quijada–Aguilar's status as a criminal deportee. The BIA found that Quijada–Aguilar waived any argument that he would be tortured based on his family affiliation because he did not raise it in his brief before the BIA. Quijada–Aguilar timely filed this petition for review.1

Jurisdiction and Standard of Review

The IJ had jurisdiction pursuant to 8 C.F.R. § 1240.1, and the BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. §§ 1252(a)(2)(D) and (a)(4). Because the BIA conducted an independent review of the facts and law, we review only the BIA's decision. Ahmed v. Keisler, 504 F.3d 1183, 1190 (9th Cir.2007). We review de novo the BIA's determination that a conviction under California Penal Code § 192(a) is a crime of violence. Covarrubias Teposte v. Holder, 632 F.3d 1049, 1052 (9th Cir.2011). We review the BIA's denial of relief under CAT for substantial evidence. Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.2007).

Discussion
A. Withholding of Removal

Aliens who have been convicted of a “particularly serious crime” are ineligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii). An aggravated felony “for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years,” qualifies as a per se “particularly serious crime.” Id. § 1231(b)(3)(B)(iv). Aggravated felonies include any “crime of violence” as defined in 18 U.S.C. § 16 for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F).

Here, the BIA's finding that Quijada–Aguilar is ineligible for withholding of removal rests on its conclusion that his voluntary manslaughter conviction under CPC § 192(a) categorically qualifies as a “crime of violence” with a term of imprisonment of at least one year, making him an aggravated felon. And, because he was sentenced to more than five years' imprisonment for that conviction, his conviction was a per se particularly serious crime, making him ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(iv). Quijada–Aguilar challenges only the BIA's determination that CPC § 192(a) is a crime of violence. For the reasons set forth below, we agree with Quijada–Aguilar that the BIA erred.

To determine whether a state conviction constitutes a crime of violence under 18 U.S.C. § 16, 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). Ruiz–Morales v. Ashcroft, 361 F.3d 1219, 1221–22 (9th Cir.2004). Under this approach, we ‘look only to the statutory definitions'i.e., the elements—of a defendant's prior offenses ...’ when making a comparison between a prior conviction” and the relevant generic definition. Rendon v. Holder, 764 F.3d 1077, 1082–83 (9th Cir.2014) (quoting Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ) (some internal quotation marks omitted). In examining the statutory definitions, we also look to relevant caselaw. See Covarrubias Teposte, 632 F.3d at 1054 (“Applying the categorical approach, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions' to give meaning to [the statute's] elements....” (quoting Ortega–Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir.2006) )). If the state statute “criminalizes more conduct” than the relevant federal generic definition, it is not a categorical match. See United States v. Gonzalez–Monterroso, 745 F.3d 1237, 1240 (9th Cir.2014).

We hold that CPC § 192(a) is not categorically a crime of violence because it encompasses a broader range of criminal intent than the federal definition of a crime of violence in 18 U.S.C. § 16.2 Specifically, in order to constitute a crime of violence under 18 U.S.C. § 16, “the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.” United States v. Gomez–Leon, 545 F.3d 777, 787 (9th Cir.2008) ; see also Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (expressly overruling prior cases that found “offenses committed through the reckless, or grossly negligent, use of force” to be crimes of violence under 18 U.S.C. § 16 ). By contrast, the California Supreme Court has clarified that a person may be convicted of voluntary manslaughter under CPC § 192(a) for merely reckless conduct.3 People v. Lasko, 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, 672 (2000). Because a person may be convicted of voluntary manslaughter under California Penal Code § 192(a) for reckless conduct—conduct that falls outside the definition of a crime of violence set forth in 18 U.S.C. § 16we conclude that § 192(a) is not categorically a crime of violence.4 As a result, Quijada–Aguilar is not ineligible for withholding of removal based on having been convicted of an aggravated felony particularly serious crime. We therefore grant Quijada–Aguilar's petition for review on this ground.

The government argues that CPC § 192(a) was limited to intentional conduct at the time of Quijada–Aguilar's conviction in 1992, regardless of what subsequent California cases have stated. Resp. Br. 19–21 (citing People v. Brubaker, 53 Cal.2d 37, 346 P.2d 8, 12 (1959) ). According to the government, the focus of the categorical approach must be on the interpretation of the statute that prevailed at the time of the conviction, not on changes in that interpretation announced later. The government's argument fails to recognize that Lasko holds that the intent to kill was never an element of voluntary manslaughter. In this regard, the Lasko Court characterized prior California cases that seemingly required an intent to kill as “fleeting observation[s] and “mere dictum,” and unequivocally stated that “voluntary manslaughter does not require an intent to kill.” 96 Cal.Rptr.2d 441, 999 P.2d at 671–72. The Lasko Court reached this conclusion in heavy reliance on the statutory language of Penal Code § 192(a), which has remained constant since 1872. See id. 96 Cal.Rptr.2d 441, 999 P.2d at 671 (noting that the “statutory provision defining voluntary manslaughter contains no requirement of intent to kill”). Compare Cal.Penal Code § 192(1) (1872), with Cal.Penal Code § 192(a) (West 2015).

Rather than changing or broadening the elements of voluntary manslaughter, then, Lasko set forth the law as it always was, including at the time of Quijada–Aguilar's conviction in 1992. See People v. Crowe, 87 Cal.App.4th 86, 94–95, 104 Cal.Rptr.2d 319 (2001) ([Lasko ] did not ‘redefine’ the crime of voluntary manslaughter. Instead, it simply acknowledged the exact words contained in the crime's statutory definition and gave effect to the fact that the Legislature had not included intent to kill in that definition although previous decisions had not given proper...

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