Anaya-Ortiz v. Mukasey

• Decision Date: 27 January 2009
• Docket Number: No. 03-74666.,03-74666.
• Citation: 553 F.3d 1266
• Parties: Virgilio ANAYA-ORTIZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

553 F.3d 1266

Virgilio ANAYA-ORTIZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 03-74666.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2007.

Filed January 27, 2009.

Gary Finn, Indio, CA, for the petitioner.

Jennifer J. Keeney and Melissa Neiman-Kelting, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A092-962-367.

Before: MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges, and JAMES K. SINGLETON,^* Senior District Judge.

OPINION

IKUTA, Circuit Judge:

Virgilio Anaya-Ortiz (Anaya), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal and ordering him removed to Mexico. We deny the petition.

I

According to an abstract of judgment dated June 4, 2001, Anaya pleaded guilty to a violation of California Penal Code § 12021(a)(1) for the crime of "POSSESSION OF A FIREARM BY A FELON" on March 21, 2001.¹ He was sentenced to two years and eight months of imprisonment. The information under which he was charged stated that the predicate offense for the felon-in-possession violation was a prior conviction for "Driving Under the Influence & Causing Injury, a felony, in violation of Vehicle Code section 23153(b)."

On August 29, 2002, the former Immigration and Naturalization Service (INS) placed Anaya in removal proceedings. The INS charged that Anaya was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." For purposes of immigration law, an "aggravated felony" is an offense defined in 8 U.S.C. § 1101(a)(43). Section 1101(a)(43)(E)(ii) defines "aggravated felony" as including an offense "described in" the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1).² A violation of § 922(g)(1) includes the following elements relevant to this case: (1) the person previously has been convicted of a crime punishable by a term of imprisonment of more than one year; and (2) the person has possessed any firearm "in or affecting" interstate or foreign commerce.³ The INS charged that Anaya's conviction of being a felon in possession of a firearm under California Penal Code § 12021(a)(1) met the description of the federal felon-in-possession offense in § 922(g)(1), and therefore qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii).

At Anaya's initial removal hearing, the IJ agreed with the INS's position and found Anaya removable as charged. The IJ also determined that Anaya was ineligible for cancellation of removal, relief available to certain lawful permanent residents who would otherwise be removable, because Anaya had been convicted of an aggravated felony. See 8 U.S.C. § 1229b.⁴ The IJ granted Anaya a continuance to allow him to apply for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A).⁵

After receiving Anaya's application for withholding of removal, the IJ reconvened a hearing on March 10, 2003 to determine Anaya's eligibility.⁶ At that hearing, Anaya admitted that he had pleaded guilty to being a felon in possession of a firearm on March 21, 2001. He testified that the predicate offense to his felon-in-possession conviction was a drunk-driving conviction, for which he was sentenced to one year in jail. According to his testimony before the IJ, Anaya drove into a house while driving drunk. The collision caused part of the house's sheetrock wall to collapse on an elderly woman who lived inside, causing injuries to her shoulder and leg. Anaya testified that his victim "ended up being okay right away afterwards because the judge even mentioned to me, he said that it, if there had been some kind of injury, you know, and something more serious to her I would have gotten some kind of cell sentence."

On the basis of Anaya's testimony regarding his drunk-driving conviction, the IJ held that Anaya had been convicted of a "particularly serious crime" and was therefore ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ also held that Anaya was ineligible for relief under the Convention Against Torture (CAT), 8 C.F.R. § 1208.16-18, and ordered him removed from the United States.

Anaya appealed this decision to the BIA. On November 21, 2003, the BIA affirmed the IJ's decision. The BIA concluded that Anaya was removable as an aggravated felon and that he had committed a "particularly serious crime" because "after drinking alcohol to the point where he was intoxicated, [he] began driving a motor vehicle in reckless disregard for persons or property whereupon he drove his car into the home of his victim causing property damage and bodily injury." After rejecting Anaya's remaining arguments, the BIA dismissed Anaya's appeal. Anaya timely filed a petition for review.

Anaya raises two arguments before us: (1) that he is not removable because his felon-in-possession conviction does not constitute a conviction of an aggravated felony; and (2) that he is eligible for withholding of removal because his drunk-driving conviction does not constitute a conviction of a "particularly serious crime." We address each in turn.

II

Anaya's first argument is that the IJ and BIA erred in holding that he was removable as an aggravated felon under 8 U.S.C. § 1101(a)(43)(E)(ii). Specifically, he argues that his conviction for being a felon in possession of a firearm under California Penal Code § 12021(a)(1) does not qualify as an "aggravated felony" conviction for immigration purposes.

Following the framework articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we answer this question in two steps. First, we "compare 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." Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007). We refer to this step in our analysis as the "categorical approach," because in this step we determine whether the statute of conviction categorically qualifies as a generic federal crime. Second, if the statute of conviction criminalizes a broader range of conduct than the federal generic crime, we use the modified categorical approach, which requires us to review the record of conviction to determine whether a defendant was necessarily convicted of the elements of the federal generic crime. See Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In making this determination, we may consider only "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information." Id. at 26, 125 S.Ct. 1254. A "comparable judicial record" includes a document (such as a minute order) prepared by a neutral officer of the court, provided that the defendant has the right to examine the document and challenge its accuracy. See United States v. Snellenberger, 548 F.3d 699, 2008 WL 4717190, *2 (9th Cir. Oct.28, 2008) (en banc) (per curiam).

Anaya first contends that the state statute of conviction, California Penal Code § 12021(a)(1), cannot qualify as the generic federal offense of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), under the categorical approach. Anaya argues that § 922(g)(1) includes an interstate-commerce element not present in the state offense. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc). But this argument is foreclosed by United States v. Castillo-Rivera, which held that a state crime of conviction need not have the interstate-commerce element contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated felony under § 1101(a)(43)(E)(ii). See United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001). While Castillo-Rivera "dealt with categorizing a prior conviction for purposes of sentencing in a criminal case, the [Supreme] Court has noted that where a statute `has both criminal and noncriminal applications,' the statute should be consistently interpreted in both criminal and noncriminal, i.e., immigration, applications." Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 (9th Cir. 2005) (quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)); see also United States v. Figueroa-Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007) (noting that "aggravated felony" has the same meaning under the INA and the Sentencing Guidelines).

After rejecting the petitioner's interstate-commerce argument in Castillo-Rivera, we explained that, "[t]o the extent that the full range of conduct encompassed by CPC § 12021(a) may not constitute an aggravated felony as an offense described in 18 U.S.C. § 922(g)(1) (e.g., § 12021(a) appears to include the possession of a firearm by an individual convicted of specified misdemeanors, as well as by one `who is addicted to the use of any narcotic drug'), the court may follow a `modified categorical approach.'" 244 F.3d at 1022. We follow the same course here.

Accordingly, we next address Anaya's contention that his record of conviction does not establish that he was necessarily convicted of all the elements of § 922(g)(1) under the modified categorical approach. We conclude that it does. Anaya's abstract of judgment states that he was convicted of the crime of "POSSESSION OF A FIREARM BY A FELON" and sentenced to a term of imprisonment of two years and eight months, which is sufficient under the modified categorical approach to confirm that he was necessarily convicted of the elements of the generic felon-in-possession offense, § 922(g)(1). See Castillo-Rivera, 244 F.3d at 1023. In light of Snellenberger, we may rely on Anaya's abstract of judgment in making...