969 F.3d 1077 (9th Cir. 2020), 19-70079, Fernandez v. Barr

Docket Nº:19-70079
Citation:969 F.3d 1077
Opinion Judge:M. SMITH, Circuit Judge.
Party Name:Jose Carmen GOMEZ FERNANDEZ, aka Jobe Carmen Gomez, aka Jose Carmen Gomez, aka Jose Gomez Carmen, Petitioner, v. William P. BARR, Attorney General, Respondent.
Attorney:Robert G. Berke (argued), Berke Law Offices Inc., Canoga Park, California, for Petitioner. Bernard A. Joseph (argued), Senior Litigation Counsel; Derek C. Julius, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Depart...
Judge Panel:Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and DAVID A. EZRA, District Judge.[*]
Case Date:August 13, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1077

969 F.3d 1077 (9th Cir. 2020)

Jose Carmen GOMEZ FERNANDEZ, aka Jobe Carmen Gomez, aka Jose Carmen Gomez, aka Jose Gomez Carmen, Petitioner,

v.

William P. BARR, Attorney General, Respondent.

No. 19-70079

United States Court of Appeals, Ninth Circuit

August 13, 2020.

Argued and Submitted June 11, 2020 San Francisco, California.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A070-640-213

Page 1078

[Copyrighted Material Omitted]

Page 1079

[Copyrighted Material Omitted]

Page 1080

[Copyrighted Material Omitted]

Page 1081

[Copyrighted Material Omitted]

Page 1082

[Copyrighted Material Omitted]

Page 1083

Robert G. Berke (argued), Berke Law Offices Inc., Canoga Park, California, for Petitioner.

Bernard A. Joseph (argued), Senior Litigation Counsel; Derek C. Julius, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and DAVID A. EZRA, District Judge.[*]

SUMMARY [**]

Immigration Denying

Jose Gomez Fernandez's petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) a murder conviction under California Penal Code § 187(a) is broader than the generic definition of murder in the aggravated felony provision of the Immigration and Nationality Act because the California statute includes the killing of a fetus; 2) § 187(a) is nonetheless divisible; 3) under the modified categorical approach, Gomez's § 187(a) conviction is an aggravated felony; and 4) substantial evidence supported the denial of deferral of removal under the Convention Against Torture (CAT).

Gomez, a native and citizen of Mexico, became a lawful permanent resident, but was later ordered removed on the ground that his conviction for second degree murder in violation of § 187(a) is an aggravated felony.

Employing the categorical approach, the panel first compared § 187(a) to the generic offense of "murder" used in the relevant aggravated felony provision, 8 U.S.C. § 1101(a)(43)(A). Although Congress did not define "murder" in that provision, the panel noted that the parties agreed that the foundation for ascertaining the federal generic definition was the federal murder statute, 18 U.S.C. § 1111, which provides in relevant part that murder is the "unlawful killing of a human being with malice aforethought." Further, the panel explained that Congress has defined the term "human being," in 1 U.S.C. § 8(a), for purposes of determining the meaning of any Act of Congress, to "include every infant member of the species homo sapiens who is born alive at any stage of development." Looking, in turn, to the definition of "born alive" in 1 U.S.C. § 8(b), the panel concluded that the term "human being" does not include a fetus. Thus, the panel held that the federal generic definition of murder excludes the killing of an unborn fetus.

The panel rejected the Government's reliance on 18 U.S.C. § 1841, the federal unborn child protection statute, to reason that the federal generic definition of murder includes the killing of an unborn fetus. Considering § 1841's plain language, purpose, and structure, the panel agreed with the Eighth Circuit that § 1841 has no applicability or reach beyond its own provisions.

Comparing § 187(a) to the federal generic definition, the panel concluded that § 187(a) is broader because it includes the killing of an unborn fetus. However, the panel concluded that § 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus. In so concluding, the panel examined the text of the statute, the Shepard documents in this case, state court decisions, and the California model jury instructions.

Applying the modified categorical approach, the panel concluded that Gomez's conviction met the federal generic definition of murder. The panel explained that the judgment against Gomez convicting him of "Count 1A" for the violation of § 187(a) clearly was linked with Count One of the indictment, which charged him with unlawfully killing "a human being" in violation of § 187(a). Accordingly, the panel concluded that Gomez's conviction is an aggravated felony that rendered him removable.

The panel also concluded that substantial evidence supported the BIA's decision affirming the denial of CAT deferral. The panel explained that Gomez presented no evidence of past torture and that he relied primarily on evidence of harm to his family members in 1996, but also testified that 1997 was the last time he had heard that the group that threatened his family was looking for his sister. Noting that Gomez indicated his brother had gone into hiding, the panel observed that he had also explained that his brother continued to live in Mexico unharmed. The panel further concluded that Gomez's speculation that the people who targeted his family in 1996 would target him now was insufficient to meet his burden.

OPINION

M. SMITH, Circuit Judge.

Shortly after Jose Gomez Fernandez, a native and citizen of Mexico, became a lawful permanent resident, a jury convicted him of second degree murder in violation of California Penal Code § 187(a). The Department of Homeland Security (DHS) charged Gomez with being removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(A). An immigration judge (IJ) and the Board of Immigration Appeals (BIA) agreed and denied Gomez's request for deferral of removal pursuant to the Convention Against Torture (CAT). Gomez petitions for our review.

California law defines "murder" as "the unlawful killing of a human being, or a fetus, with malice aforethought." Cal. Penal Code § 187(a) (emphasis added).1 The principal issue that the petition raises is whether a § 187(a) conviction is broader than the federal generic definition of murder in the aggravated felony provision of the Immigration and Nationality Act (INA) because it includes the killing of a fetus, and, if so, whether § 187(a) is divisible.

Page 1084

We are aware of the sensitive nature that this issue raises. Our limited role, however, is to apply the Supreme Court's method for determining whether an offense qualifies as an aggravated felony under the INA.

Doing so here, we hold that the federal generic definition of murder is "the unlawful killing of a human being with malice aforethought." 18 U.S.C. § 1111(a). Because federal law defines the term "human being" to exclude an unborn fetus, 1 U.S.C. § 8, California Penal Code § 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition. However, we also hold that § 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus. Gomez's § 187 conviction for the unlawful killing of a human being renders him removable as charged. Finally, we conclude that substantial evidence supports the denial of CAT deferral. Thus, we deny the petition.

BACKGROUND

Gomez became a lawful permanent resident in 2000. Three years later, a jury convicted him of second degree murder in violation of § 187(a), and he was sentenced to fifteen years to life in prison with the possibility of parole.

In December 2017, DHS charged Gomez as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(A). Gomez averred that he was not removable as charged because (1) § 187(a), by criminalizing the killing of a fetus, is broader than the federal generic definition of murder under the INA and (2) § 187(a) is indivisible.2 Gomez also sought withholding of removal and CAT relief, claiming a fear of returning to Mexico.

The IJ concluded that Gomez was removable as charged. First, he concluded that Gomez had failed to show that § 187(a) is broader than the federal generic definition of murder. The IJ recognized that in Matter of M-W-, 25 I. & N. Dec. 748, 752, 758 (B.I.A. 2002), the BIA had construed the INA's generic definition of murder to mean the killing of a human being with malice aforethought. But the IJ reasoned that the federal generic definition "implicitly includes murder of `a fetus.'" The IJ observed that 18 U.S.C. § 1841— a federal statute that criminalizes certain conduct that causes the death of or great bodily injury to an unborn child— imposes the same punishments that apply to the federal murder statute, 18 U.S.C. § 1111, when the offense involves the intentional killing of or intentional attempt to kill a fetus. 18 U.SC. § 1841(a)(2)(C). The IJ further reasoned that "[a] significant majority of states also protect fetal life in murder statutes[.]"

Alternatively, the IJ assumed that § 187(a)'s inclusion of the killing of a fetus rendered it overbroad. The IJ concluded that § 187(a) is divisible because it creates different crimes for the killing of a human being and of a fetus. The IJ then determined that Gomez's conviction satisfies the federal generic definition because he was charged with killing a "human being." The IJ concluded that Gomez was ineligible for asylum and withholding of removal for being convicted of a particularly serious crime. The IJ denied CAT deferral because Gomez had not shown that he would be tortured in Mexico.

Page 1085

The BIA adopted and affirmed the IJ's decision. Gomez timely petitioned for our review.

JURISDICTION AND STANDARD OF REVIEW

When an alien is found removable for having a conviction that is an aggravated felony under the INA,...

To continue reading

FREE SIGN UP