Ramirez v. Lynch

• Citation: 810 F.3d 1127
• Decision Date: 20 January 2016
• Docket Number: No. 08–72896.,08–72896.
• Parties: Hector Giovanni RAMIREZ, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

810 F.3d 1127

Hector Giovanni RAMIREZ, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 08–72896.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 20, 2014.

Filed Jan. 20, 2016.

Anna Benvenue (argued) and Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for Petitioner.

Anh–Thu P. Mai–Windle (argued), Senior Litigation Counsel and Thomas B. Fatouros, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.; Tony West, Assistant Attorney General, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A043–733–743.

Before: KIM McLANE WARDLAW and RICHARD A. PAEZ Circuit Judges and MATTHEW F. KENNELLY,^* District Judge.

OPINION

PAEZ, Circuit Judge:

Hector Giovanni Ramirez petitions for review of the Board of Immigration Appeals's ("BIA") decision that his conviction under California Penal Code section 273a(a) for felony child abuse constitutes a crime of violence under 18 U.S.C. § 16(a) and (b) and therefore qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We conclude that section 273a(a) is not a categorical crime of violence and is not divisible. We thus agree with Ramirez that his conviction does not constitute an aggravated felony, and grant the petition and remand.

I.

A.

Ramirez is a native and citizen of El Salvador. He immigrated to the United States as a lawful permanent resident in 1992, and all of his immediate family members are U.S. citizens. Ramirez graduated from high school in the United States and subsequently enlisted in the U.S. Navy, serving for four years.

In February 2000, Ramirez was convicted of felony child abuse, in violation of section 273a(a), and was sentenced to 8 years and 4 months of imprisonment. Ramirez appealed his conviction, which the California Court of Appeal affirmed.

The Department of Homeland Security commenced removal proceedings against Ramirez in February 2007, alleging that he was subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of a "crime of violence," which is a deportable "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. The immigration judge found him removable as charged and ordered him removed. Ramirez appealed to the BIA, arguing that his conviction did not constitute a crime of violence and therefore did not constitute an aggravated felony. The BIA affirmed the IJ, concluding that a) section 273a(a) is a divisible statute; and b) it contained a "direct infliction" prong, which incorporated a mens rea element of general intent, and was therefore a categorical match for the federal definition of a crime of violence. The BIA, employing the modified categorical approach, examined the records of conviction contained in the administrative record and concluded that Ramirez had been convicted of the direct infliction prong. Ramirez filed a timely petition for review.

Although we lack jurisdiction to review the final orders of removal of aliens convicted of certain crimes, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to determine our own jurisdiction. Therefore, when the issue at hand is whether an alien has committed an aggravated felony, "the jurisdictional question and the merits collapse into one." See Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Where, as here, the BIA conducts an independent review of the IJ's findings, we review the BIA's decision and not that of the IJ. Romero–Ruiz v. Mukasey, 538 F.3d 1057, 1061 (9th Cir.2008).

"We do not defer [under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ] 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," (INA) including 18 U.S.C. § 16. Ortega–Mendez v. Gonzales, 450 F.3d 1010, 1014 (9th Cir.2006) (citing Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005) ). Therefore, we review de novo the decision of the BIA.

B.

To assess whether a state conviction qualifies as an aggravated felony, we generally employ the "categorical approach" to determine whether the state offense matches the "generic" federal definition of the pertinent offense listed in the INA: here, a crime of violence under 18 U.S.C. § 16(a) or (b).¹ Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). We do so by "compar[ing] the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition." Rodriguez–Castellon v. Holder, 733 F.3d 847, 853 (9th Cir.2013) (internal quotation marks and citation omitted). In making this comparison, we must rely exclusively on the elements of the two crimes, "[b]ecause we examine what the state conviction necessarily involved, not the facts underlying the case, [and so] must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts' criminalized." Moncrieffe, 133 S.Ct. at 1684 (emphasis added). We "then determine whether even those acts are encompassed by the generic federal offense." Id.; Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ("The key ... is elements, not facts.").

In identifying the elements of the statute of conviction, we look not only to the text of the statute, but also to how state courts have interpreted and applied the statute. Covarrubias Teposte v. Holder, 632 F.3d 1049, 1054 (9th Cir.2011). We must determine whether there exists "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Additionally, if the federal generic offense is not itself a crime, but rather a classification of crimes, like "crime[s] of violence," then we also compare the crime of conviction with other crimes determined to fall within that classification. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008). If, after conducting this categorical analysis, we conclude that the state statute of conviction criminalizes more conduct than the federal generic offense, then the state conviction does not fall within the federal definition, and will not qualify as an aggravated felony crime of violence for immigration purposes. See Descamps, 133 S.Ct. at 2283.

In a "narrow range of cases," when the statute at issue is divisible, we may employ a "modified categorical approach." Id. at 2283–85 (citation omitted). A divisible statute lists alternative sets of elements, in essence "several different crimes." Id. at 2284. "If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of." Id. at 2285. In these instances, we may look beyond the elements of the statute to the documents of conviction, i.e., to "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment," to determine whether the petitioner was convicted of a set of elements that falls within the generic definition. Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (citing Hernandez–Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir.2003) ). The modified categorical approach is thus "a tool" that allows us to apply the categorical approach. Descamps, 133 S.Ct. at 2285. Moreover, "[i]t retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime," as well as its "basic method." Id.

With these principles in mind, we first examine the generic federal definition of a crime of violence under 18 U.S.C. § 16, and then turn to section 273a(a) of the California Penal Code.

II.

The initial briefing in this case took place before the Supreme Court issued its opinions in Moncrieffe and Descamps, and before we issued our opinion in Rendon v. Holder, 764 F.3d 1077 (9th Cir.2014). While Ramirez initially agreed that the modified categorical approach was appropriate, he now contends that section 273a(a) is indivisible and categorically is not a crime of violence. The parties filed supplemental briefs, which we have duly considered, addressing the impact of these decisions on Ramirez's case.

The government does not dispute that section 273a(a) is not a categorical match to the federal generic definition of a crime of violence. Instead, the government argues, as it has throughout, that section 273a(a) is a divisible statute, and that we should therefore apply the modified categorical approach. The government further contends that the court may determine from documents in the administrative record that Ramirez was convicted of the direct infliction prong of section 273a(a), which provides criminal penalties for any person who, "under circumstances or conditions likely to produce great bodily harm or death ... inflicts [upon a child] unjustifiable physical pain or mental suffering." The government argues that this prong falls within the generic definition of a "crime of violence" under both 18 U.S.C. § 16(a) and (b).

The federal generic crime at issue, § 16, defines a "crime of violence" as 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.

In Leocal v. Ashcroft, the Supreme Court determined that " ‘use’ of force" signifies intentional conduct—"active employment"—and encompasses a mens rea element greater than...