Bolanos v. Holder

• Decision Date: 21 August 2013
• Parties: WILLIAM ERNESTO JIMENEZ BOLANOS, Petitioner, v. ERIC H. HOLDER JR., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

WILLIAM ERNESTO JIMENEZ BOLANOS, Petitioner,
v.
ERIC H. HOLDER JR., Attorney General, Respondent.

No. 11-72605
Agency No. A073-850-458

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed August 21, 2013

FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted July 11, 2013—Pasadena, California
Before: Susan P. Graber, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.
Opinion by Judge Graber

Page 2

SUMMARY^*
Immigration

The panel dismissed William Ernesto Jimenez Bolanos's petition for review of the decision of the Board of Immigration Appeals finding him statutorily ineligible for cancellation of removal and asylum based on his conviction for brandishing a firearm in the presence of the occupant of a motor vehicle, in violation of California Penal Code § 417.3.

The panel held that CPC § 417.3 qualifies categorically as an aggravated felony crime of violence under 18 U.S.C. § 16(a), because it has as an element the threatened use of physical force against another person.

COUNSEL

Barbara J. Darnell-Allen (argued) and Armineh Ebrahimian, Law Offices of Barbara J. Darnell, Los Angeles, California, for Petitioner.

Rebecca H. Phillips (argued), Stuart F. Delery, and Ada E. Bosque, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Page 3

OPINION

GRABER, Circuit Judge:

This immigration case raises a single issue: Does a conviction under California Penal Code section 417.3 count categorically as a "crime of violence" and therefore as an "aggravated felony" because of which the convicted person is ineligible for cancellation of removal? We answer that question "yes" and, accordingly, dismiss the petition.

Petitioner William Ernesto Jimenez Bolanos is a native and citizen of El Salvador. He entered the United States as a legal permanent resident in 1999. About ten years later, Petitioner pleaded guilty to, and was therefore convicted of, brandishing a firearm in the presence of the occupant of a motor vehicle, in violation of California Penal Code section 417.3. He received a 16-month sentence plus a stayed two-year sentence because of the gang-related nature of the offense.

The Department of Homeland Security then served on Petitioner a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(C) because, after admission, he was convicted of a firearm offense. He admitted the factual allegations in the notice but sought cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The immigration judge ("IJ") held that Petitioner's conviction was for a "crime of violence" as defined in 18 U.S.C. § 16, and thereby an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(F), making Petitioner statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3) and for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii) and (b)(2)(B)(I).

Page 4

Further, the IJ denied withholding of removal and CAT relief on the merits.

Petitioner appealed to the Board of Immigration Appeals ("BIA"). His sole challenge to the IJ's decision concerned the IJ's ruling that the conviction under section 417.3 qualified as a crime of violence and, therefore, as an aggravated felony.¹ The BIA affirmed the IJ's conclusion but issued its own reasoned decision. Among other things, the BIA relied on both 18 U.S.C. § 16(a) and 18 U.S.C. § 16(b), writing that

the nature of brandishing a firearm in a threatening manner against an individual, who is in the confined space of a moving vehicle, with close enough proximity that a reasonable person would apprehend or fear bodily harm, threatens the use of physical force and presents a substantial risk that physical force may be used against the person or property of another in the course of committing the offense.

This timely petition for review followed. Because the BIA issued its own decision without incorporating the IJ's, we review only the BIA's decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to consider a challenge to the removal order that rests on a firearm conviction. But

Page 5

we retain jurisdiction to decide our own jurisdiction and to resolve questions of law. Malilia v. Holder, 632 F.3d 598, 601-02 (9th Cir. 2011); 8 U.S.C. § 1252(a)(2)(D). We review those questions of law de novo. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013).

To be convicted under section 417.3, the defendant must "draw[] or exhibit[] any firearm . . . in a threatening manner against another person [who is an occupant of a motor vehicle proceeding on a public street or highway] in such a way as to cause a reasonable person apprehension or fear of bodily harm." Thus the statute requires that the defendant (1) intentionally draw or exhibit a firearm (2) in a threatening way (3) against a person occupying a motor vehicle on a public road (4) in such a way that a reasonable target of the threat actually would fear bodily harm. Because of those requirements—including the intentional display of a firearm in a threatening manner, the proximity of the armed person to another...