Delgado–Hernandez v. Holder

• Decision Date: 09 October 2012
• Docket Number: No. 08–70789.,08–70789.
• Citation: 697 F.3d 1125
• Parties: Boris Edember DELGADO–HERNANDEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

697 F.3d 1125

2012 Daily Journal D.A.R. 13,943

Boris Edember DELGADO–HERNANDEZ, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08–70789.

United States Court of Appeals,Ninth Circuit.

Submitted Oct. 2, 2012.^*

Filed Oct. 9, 2012.

Jaime Jasso, Law Office of Jaime Jasso, Westlake Village, CA; Robert B. Jobe and Anna L. Benvenue, Law Office of Robert B. Jobe, San Francisco, CA; and Sean K. Kennedy, Federal Public Defender and Michael Tanaka, Deputy Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for the petitioner.

Tony West, Assistant Attorney General, Donald E. Keener, Deputy Director, and Robert N. Markle, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A029–273–534.

Before: MICHAEL DALY HAWKINS, M. MARGARET McKEOWN and JAY S. BYBEE, Circuit Judges.

OPINION

PER CURIAM:

Boris Edember Delgado–Hernandez (“Delgado”) seeks review of a final order of removal following the Board of Immigration Appeals' (“BIA”) determination that his conviction for attempted kidnapping under California Penal Code § 207(a) is an aggravated felony because it is categorically a crime of violence.¹ We deny the petition because an ordinary case of kidnapping under this statute presents a substantial risk of force, and therefore § 207(a) defines a crime of violence.

Background

Delgado, a citizen of El Salvador, was lawfully admitted to the United States on July 23, 2001, and became a lawful permanent resident in 2003. He pled guilty to the attempted kidnapping of his cousin on April 12, 2006 under California Penal Code § 207(a), and was sentenced to eighteen months in prison. The Department of Homeland Security initiated removal proceedings against Delgado in September of 2006, charging him as removable under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge found that attempted kidnapping under § 207(a) was an aggravated felony. Delgado timely appealed, and the BIA affirmed the decision in an unpublished opinion.

We have jurisdiction under 8 U.S.C. § 1252(a)(1), which provides for judicial review of final orders of removal, and under 8 U.S.C. § 1252(a)(2)(D), which provides for judicial review of constitutional and legal questions raised by petitioners found removable based on criminal activity. “[W]e review de novo the BIA's determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations.” Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir.2006). Because the BIA resolved this appeal in an unpublished decision, we defer to its interpretation of the INA only to the extent we find it persuasive. See id. at 1014–15.

Analysis

The sole issue on appeal is whether Delgado's conviction for attempted kidnapping is a crime of violence, thus making him removable as an aggravated felon. An “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F) means “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” Delgado's challenge to the BIA's determination turns on the definition of “crime of violence” in 18 U.S.C. § 16:

(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.

Under 8 U.S.C. § 1101(a)(43)(U), attempts to commit an aggravated felony are treated as if they are completed commissions of the aggravated felony. Delgado does not dispute that his conviction under § 207(a) carries a term of imprisonment of at least one year, but he argues that it does not qualify as a crime of violence.

The government has at its disposal three possible ways to demonstrate that § 207(a) defines a crime of violence. Under the categorical approach, it may show that the crime has a force element under § 16(a). Alternatively, it may show that § 207(a) categorically involves a substantial risk of force under § 16(b). Finally, under the modified categorical approach, it may bring forth the judicially noticeable documents in Delgado's conviction to show that his particular crime was a crime of violence under § 16(a) or § 16(b). Although § 207(a) does not include a force element under § 16(a), an ordinary kidnapping under § 207(a) presents a substantial risk of force, thereby categorically triggering § 16(b). Because § 207(a) is categorically a crime of violence, we need not rely on the modified categorical analysis.

A. Force Element under § 16(a)

In determining whether an offense qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), we apply the “categorical approach” to determine whether the “full range of conduct covered by” the relevant state criminal statute “falls within the meaning of” a crime of violence under 18 U.S.C. § 16. Penuliar v. Mukasey, 528 F.3d 603, 609 (9th Cir.2008) (internal quotation marks omitted). Subsection § 207(a) provides:

Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

Our analysis on this point begins and ends with the plain text of the statute. Because kidnapping under § 207(a) can be committed by “any means of instilling fear” instead of by force, § 207(a) does not include “the use ... of physical force” as an element of the crime. 18 U.S.C. § 16(a). See United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.1988) (holding that kidnapping under the Model Penal Code does not qualify as a crime of violence under a provision analogous to 18 U.S.C. § 16(a) because it may be achieved through trickery or deceit rather than force). As a result, the “force” element of § 207(a) does not categorically qualify the kidnapping as defined by the statute as a crime of violence under 18 U.S.C. § 16(a).

B. Substantial Risk of Force under § 16(b)

The analysis under 18 U.S.C. § 16(b), whether § 207(a) “involves a substantial risk that physical force ... may be used” and thus qualifies as a crime of violence, is not as straightforward as that under § 16(a). Because we must evaluate gradations of risk, which is an “inherently probabilistic concept[ ],” unlike in our analysis of § 16(a), the language of § 207(a) is not decisive on its face. James v. United States, 550 U.S. 192, 207, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).² Nevertheless, we previously held that kidnapping by force or fraud under § 207(d) presents a serious risk of physical injury. United States v. Lonczak, 993 F.2d 180, 183 (9th Cir.1993). Our sister circuits have also treated similar kidnapping statutes as presenting a substantial risk of force. We conclude again that kidnapping under § 207 is a crime of violence under § 16(b).

Before diving into the commentary on kidnapping statutes, we step back to consider first principles, especially the evaluation of risk in crime of violence statutes. Under the categorical approach, we consider whether the elements of § 207(a) constitute a crime of violence, as defined by § 16(b), that is, whether they present a substantial risk of force. See Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In evaluating “substantial risk” as we parse the force and fear elements of kidnapping in § 207(a), we inquire whether “the conduct encompassed by the elements of the offense, in the ordinary case, presents” such a risk. See James, 550 U.S. at 208, 127 S.Ct. 1586. The “risk of physical confrontation with a property owner, law enforcement official, or other third party” in attempting burglary, for example, presents a sufficient probability of injury under the statute to qualify burglary as a crime of violence. Id. at 213, 127 S.Ct. 1586.³

Our approach in Lonczak strongly suggests that in the ordinary case the force or fear contemplated in § 207(a) presents a serious risk of force. 993 F.2d at 183. In Lonczak, we held that Cal. Pen.Code § 207(d), which criminalized kidnapping as “tak[ing] by force or fraud,” constitutes a crime of violence for the purposes of then-U.S.S.G. § 4B1.2(1)(ii) as it “present[s] a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(1) cmt. n.2. 993 F.2d at 183.

To an extent, Lonczak has been overtaken by developments in the following decade. In 2002, the California Supreme Court declared that “the only force required to kidnap an unresisting infant or child is the amount necessary to move the victim a substantial distance.” In re Michele D., 29 Cal.4th 600, 128 Cal.Rptr.2d 92, 59 P.3d 164, 172 (2002) (holding a minor defendant guilty of kidnapping for leaving a store with a friend's infant child). The next year, the California Legislature added section 207(e) to the penal code to codify the standard articulated in Michele D. See 2003 Cal. Legis. Serv. 209 (West). The result is that the requirement of an element of force is “relaxed or eliminated in a kidnapping that involves an infant or small child” in California under § 207. Michele D., 128 Cal.Rptr.2d 92, 59 P.3d at 169. Subsection 207(e)'s adoption of this non-“conventionally understood” meaning of force after Lonczak,id., raises a question as to whether the force that is possible in a kidnapping under § 207 rises to the level of force contemplated in § 16(b).⁴ In other words, merely picking up and carrying away an infant, without any other conflict, does not entail a substantial risk of force as the term is used in...