Larin-Ulloa v. Gonzales

• Decision Date: 24 August 2006
• Docket Number: No. 03-60721.,03-60721.
• Citation: 462 F.3d 456
• Parties: Juan LARIN-ULLOA, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.3d 456

Juan LARIN-ULLOA, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.

No. 03-60721.

United States Court of Appeals, Fifth Circuit.

August 24, 2006.

Lisa S. Brodyaga (argued), Refugio de Rio Grande, San Benito, TX, for Petitioner.

Carol Federighi (argued), Thomas Ward Hussey, Dir., M. Jocelyn Lopez Wright, U.S. Dept. of Justice, OIL, Civ. Div., Washington, DC, E.M. Trominski, Dist. Dir., U.S. INS, Harlingen, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Juan Larin-Ulloa ("Larin"), a native and citizen of El Salvador, petitions for review of (i) the decision of the Board of Immigration Appeals ("BIA") that he is removable for having been convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii); and (ii) the BIA's denial of his motion to reopen his appeal. Because we find that the record does not establish that Larin was convicted of an aggravated felony, as that term is defined at 8 U.S.C. § 1101(a)(43), we grant Larin's petition, vacate the order of removal, and remand the case to the BIA for any further proceedings consistent with this opinion.

I. Facts and Procedural History

Larin was admitted to the United States in 1981, and he became a lawful permanent resident in 1989. In 2000, Larin pleaded guilty to one count of aggravated battery under Kansas law. Kansas' aggravated battery statute contains multiple sections and subsections, each of which defines one or more types of conduct that violates the statute. The statute, Kan. Stat. Ann. § 21-3414, provides, in pertinent part:

(a) Aggravated battery is:

(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or

(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted;

....

(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony . . . .

Kan. Stat. Ann. § 21-3414. Precisely which branch of this statute provided the basis for Larin's conviction is an issue of particular importance to his petition for review.

The bill of information under which Larin originally was charged tracked the language of subsection (a)(1)(A). It charged that Larin "unlawfully, intentionally cause[d] great bodily harm or disfigurement to another person, to wit: Isarael Rosas; Contrary to Kansas Statutes Annotated 21-3414(a)(1)(A), Aggravated Battery, Severity Level 4, Person Felony." Prior to Larin's guilty plea, however, the state amended the bill of information, by handwritten interlineation, to charge that Larin "unlawfully, intentionally in a manner whereby [illegible] could have [illegible] cause great bodily harm or disfigurement to another person, to wit: Isarael Rosas; Contrary to Kansas Statutes Annotated 21-3414(a)(1)(A), Aggravated Battery, Severity Level 7, Person Felony." Although the amended bill of information still referred to subsection (a)(1)(A) of the statute (and notwithstanding its grammatical shortcomings), the language of the amended information, as well as the corresponding amendment to the charged severity level,¹ suggests that the state intended to charge Larin with a violation of either subsection (a)(1)(B) or (a)(1)(C). Indeed, Larin's written guilty plea recited that he was pleading guilty to one count of aggravated battery in violation of subsection (a)(1)(B).

Despite the changes to the amended bill of information, the journal entry that recorded the judgment against Larin stated that he was convicted under subsection (a)(1)(A). The state court then sentenced Larin to 24 months probation, with an underlying suspended prison term of 12 months.

In 2002, the Immigration and Naturalization Service ("INS")² initiated removal proceedings against Larin. The INS alleged that Larin was removable because his Kansas aggravated battery conviction was a "crime of violence" and, therefore, an "aggravated felony"³ that rendered Larin removable under 8 U.S.C. § 1227(a)(2)(A)(iii). At a hearing before the immigration judge, Larin's counsel conceded that Larin had been convicted under subsection (a)(1)(A) of the Kansas aggravated battery statute, but asserted that a conviction under that section was not a crime of violence for purposes of removal. The immigration judge held that Larin's conviction was for a crime of violence and found that he was removable on that basis. On appeal to the BIA, Larin's new counsel argued primarily that the confused and ambiguous bill of information failed to validly charge Larin with any crime. The BIA rejected this challenge and found that Larin's aggravated battery conviction was a crime of violence regardless of whether he was convicted under subsection (a)(1)(A) (as reflected in the journal entry recording the judgment and as Larin conceded before the immigration judge) or subsection (a)(1)(B) (as reflected by Larin's written guilty plea) of the Kansas statute. The BIA noted that subsections (a)(1)(A) and (a)(1)(B) both contain as an element that the defendant intentionally cause the victim bodily harm, and, relying on the panel decision in United States v. Calderon-Pena, 339 F.3d 320 (5th Cir. 2003), vacated on reh'g en banc, 362 F.3d 293 (5th Cir.2004), held that this element of intentionally causing bodily harm was sufficient to render a conviction under either subsection a crime of violence.

After the BIA's decision, Larin moved to vacate his conviction in Kansas state court on the ground that the amended bill of information did not charge all of the elements of any subsection of the Kansas aggravated battery statute. The Kansas court did not vacate Larin's conviction, but instead issued a judgment nunc pro tunc⁴ stating that Larin's conviction actually was based on subsection (a)(1)(C) of the Kansas aggravated battery statute.

Larin then filed a motion with the BIA to reopen his appeal and terminate the proceedings against him on the ground that his conviction under subsection (a)(1)(C) was not for a crime of violence and he was therefore not removable for having committed an aggravated felony. As noted above, aggravated battery under section 21-3414(a)(1)(C) is "intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted." Kan. Stat. Ann. § 21-3414(a)(1)(C). Thus, subsection (a)(1)(C) defines two separate crimes: (1) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon; and (2) intentionally causing physical contact with another person in any manner whereby great bodily harm, disfigurement or death can be inflicted. Larin argued that he was convicted of violating the second part of subsection (a)(1)(C) and that a conviction under that portion of the statute was not a crime of violence under 18 U.S.C. § 16.

The BIA denied Larin's motion to reopen. In its decision, the BIA apparently considered the judgment nunc pro tunc as valid, but concluded that, like the original judgment, the judgment nunc pro tunc established that Larin was convicted of a crime of violence. The BIA noted that the state court's journal entry form, on which the rendition of the judgment nunc pro tunc was recorded, also contained a notation regarding Larin's sentence that suggested that the sentencing judge had been informed that the offense was committed with a firearm. The BIA inferred from that notation that Larin had been convicted of violating the first part of subsection (a)(1)(C) of the Kansas statute.⁵ The BIA explained its decision as follows:

[T]he judgment nunc pro tunc clearly reflects that the respondent committed the aggravated battery with a firearm. See Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (court may look to conviction records when statute is divisible). Thus, the respondent's conviction falls under the part of the statute stating that "intentionally causing physical contact with another when done in a rude, insulting or angry manner with a deadly weapon." Use of a deadly weapon while intentionally causing physical contact clearly involves a substantial risk that physical force against another person may be used. Consequently, the respondent's conviction constitutes an aggravated felony as defined under section 101(a)(43)(F) of the Act and he is removable pursuant to section 237(a)(2)(A)(iii) of the Act.

Larin timely petitioned this court for judicial review of the question of law raised by the BIA's final order of removal and its denial of his motion to reopen— whether the BIA correctly determined that Larin's aggravated battery conviction was a crime of violence under 18 U.S.C. § 16, thus rendering Larin removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

II. Jurisdiction and Standard of Review

Our jurisdiction in this case is governed by 8 U.S.C. § 1252. Although section 1252(a)(2)(C) generally prohibits judicial review of "any final order of removal against an alien who is removable by reason of having committed" certain designated criminal offenses, including an aggravated felony under 8 U.S.C. § 1101(a)(43), the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, amended section 1252(a)(2) to provide that section 1252 does not bar judicial review of "constitutional claims or questions of law raised upon a petition for review filed with an...