Barraza v. Immigration & Naturalization Serv., MONTIEL-BARRAZ
Decision Date | 07 December 2001 |
Docket Number | No. 00-70784,MONTIEL-BARRAZ,PETITIONER,00-70784 |
Citation | 275 F.3d 1178 |
Parties | (9th Cir. 2002) RAMON, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT |
Court | U.S. Court of Appeals — Ninth Circuit |
J. Manuel Sanchez, J. Manuel Sanchez & Associates, San Ysidro, California, for the petitioner-appellant.
Cindy S. Ferrier, Office of Immigration Litigation, United States Department of Justice, Civil Division; David W. Ogden, Assistant Attorney General, United States Department of Justice; Linda S. Wendtland, Assistant Director, Washington, D.C., for the respondent-appellee.
Petition for Review of an Order of the Board of Immigration Appeals I&NS No. A21-287-581
Before: Robert R. Beezer and Kim McLane Wardlaw, Circuit Judges, and William W Schwarzer, Senior District Judge**
Per Curiam Opinion
Ramon Montiel-Barraza petitions for review of an order of the Board of Immigration Appeals finding him removable as an aggravated felon under 8 U.S.C. §§ 1227(a)(2)(A)(iii). Montiel-Barraza was convicted on December 4, 1998, of driving under the influence of alcohol (DUI) with multiple prior convictions, in violation of California Vehicle Code sections 23152(a) and 23175. Because petitioner had four prior DUI convictions under section 23152 within the past seven years, section 23175 elevated his conviction to a felony and enhanced his sentence. He was sentenced to sixteen months' imprisonment.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Pub. L. No. 104-208, 110 Stat. 3009 (1996) limits our review of removal orders. 8 U.S.C. §§ 1252(a)(2)(C) (). Nonetheless, we have jurisdiction to determine our jurisdiction, Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000), and may review the threshold issue of whether Montiel's conviction constituted an aggravated felony. Matsuk v. INS, 247 F.3d 999, 1001 (9th Cir. 2001).
In United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001), we held that a conviction for driving under the influence of alcohol with injury to another does not constitute a crime of violence and cannot be an aggravated felony. Id. at 1146 () . The instant case involves a violation of section 23152 which does not require proof of injury to another. If driving under the influence with injury to another does not amount to an aggravated felony, then logically a violation of the lesser offense cannot qualify as an aggravated felony.
The government contends that the case at bench is distinguishable because petitioner was convicted under section 23175. That section, now numbered 23550, provides that a person convicted of three or more separate violations of section 23152 or 23153 within seven years is punishable by imprisonment of not less than 180 days nor more than a year. Cal. Veh. Code §§ 23550 (West 2001). Citing People v. Forster, 29 Cal. App. 4th at 1746 (Cal. Ct. App. 1994), the government argues that Forster, 29 Cal. App. 4th 1757 (internal citations omitted).
Whatever the validity of the suggested inference, section 23175 is an enhancement statute; it does not alter the elements of the underlying offense. See Almendarez-Torres v. United States, 523 U.S. 224 (1998) ( ). Accordingly, our analysis in Trinidad-Aquino applies with equal force to recidivists. See also United States v. PortilloMendoza, No. 00-10407, 2001 WL 1598219 (9th Cir. Dec. 17, 2001). Other circuits have reached the same conclusion. See Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (...
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U.S. v. Corona-Sanchez
...have drawn a similar distinction between substantive offenses and recidivist sentencing enhancement statutes. See Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.2002) (holding that California Vehicle Code § 23175, now numbered 23550, which functions similarly to Penal Code § 666 but i......
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Arreola-Arreola v. Ashcroft
...however, we determined that a conviction for driving under the influence did not constitute an aggravated felony. See Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir.2002). Thus, Arreola argues that, in light of the changes in the law, the prior removal order is invalid and cannot serve as t......
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In re Ramos
...v. INS, 256 F.3d 600, 611 (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001); see also Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002). Of these circuits, three have specifically reversed our decisions. The fourth has mandated that its decisions interpret......
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U.S. v. Lucio-Lucio, No. 03-2025.
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