Ortiz-Magana v. Mukasey

• Decision Date: 28 April 2008
• Docket Number: No. 06-72797.,06-72797.
• Citation: 542 F.3d 653
• Parties: Gerardo ORTIZ-MAGANA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

542 F.3d 653

Gerardo ORTIZ-MAGANA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-72797.

United States Court of Appeals, Ninth Circuit.

Submitted February 15, 2008.^*

Filed April 28, 2008.

Amended September 9, 2008.

Kari E. Hong, Esq., Law Offices of Kari E. Hong, Portland, OR, for the petitioner.

Dalin R. Holyoak, Esq., Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-184-118.

Before: BARRY G. SILVERMAN, M. MARGARET McKEOWN, and RICHARD C. TALLMAN, Circuit Judges.

ORDER

The opinion filed on April 28, 2008, and published at 523 F.3d 1042 (9th Cir.2008), is AMENDED as follows:

Page 1050: The second full paragraph (under subsection 3) reads:

"Finally, we must afford at least some deference to the BIA's legal determination that aiding and abetting falls within the definition of a violent crime. Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1113 (9th Cir.2007) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)) (reasoning that "because the BIA's decision was an unpublished disposition, issued by a single member of the BIA, which does not bind third parties, we employ the less deferential Skidmore standard" (quotation omitted)). Skidmore instructs that the deference we afford to an agency's judgment "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." 323 U.S. at 140. 65 S.Ct. 161."

Replace with the following language:

"Finally, we are persuaded by the BIA's determination that aiding and abetting falls within the definition of a violent crime. Although concise, the BIA's interpretation is well-taken. The BIA reasoned:"

Page 1050: Delete the third full paragraph, which states:

"The BIA's interpretation here, although concise, is well-taken. The BIA reasoned:"

No petitions for rehearing or rehearing en banc will be accepted.

The mandate shall issue forthwith.

IT IS SO ORDERED.

OPINION

TALLMAN, Circuit Judge:

Assault with a deadly weapon under California Penal Code § 245(a)(1) is a crime of violence as defined by 18 U.S.C. § 16; therefore, an alien convicted of that offense generally is an "aggravated felon" for immigration purposes. We must decide as a matter of first impression whether an alien is also an "aggravated felon" when he is convicted under section 245(a)(1) as an aider and abettor instead of as a principal. The Board of Immigration Appeals (BIA) ruled that no principled distinction can be drawn for immigration purposes between an alien's status as an accessory and his role as a principal in the commission of a section 245(a)(1) aggravated felony. We agree, and deny the petition for review.

I

In 1991, Gerardo Ortiz-Magana (Ortiz-Magana), an eight-year-old native and citizen of Mexico, entered the United States without inspection or admission. On November 27, 1998, at the age of fifteen, he adjusted his status to become a lawful permanent resident.

On December 29, 2003, Ortiz-Magana was charged, in a criminal information by the State of California, with assaulting Robert Mora with a knife, employing force likely to produce great bodily injury. The information further alleged that Ortiz-Magana committed the offense for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members. Finally, the information charged that for purposes of limiting the availability of probation as a sentence, Cal.Penal Code § 1203(e)(3), and as a sentencing enhancement under Cal.Penal Code § 12022.7, Ortiz-Magana "personally inflicted great bodily injury upon Robert Mora, a person not an accomplice to the offense." On July 1, 2004, Ortiz-Magana pleaded guilty to, and was convicted of, "[a]ssault with a deadly weapon by force" likely to produce great bodily injury contrary to California Penal Code section 245(a)(1). He received a sentencing enhancement for participation in a criminal street gang, see Cal.Penal Code § 186.22(b)(1), which the abstract of judgment indicates was stayed.

On November 11, 2005, the Department of Homeland Security (DHS) served Ortiz-Magana with a notice to appear for removal proceedings alleging that he had been convicted of an aggravated felony. After several attempts to obtain counsel and receiving continuances to get a lawyer, Ortiz-Magana eventually appeared pro se before an Immigration Judge (IJ), waived his privilege of representation by counsel, and asked to proceed with his case. During proceedings, Ortiz-Magana conceded all allegations in the notice to appear, save for one. He contended that he was convicted of section 245(a)(1) not as a principal, but as an aider or abettor under section 245(a)(5). He urges us to conclude that this characterization matters in deciding whether he was convicted of an aggravated felony when he says he did not personally wield the knife.

Confusingly, the documents submitted as part of the record contain handwriting by an unknown party appearing to strike out the section 12022.7 sentencing enhancement and designating such enhancement as "stricken." This designation is problematic. An enhancement under California Penal Code section 12022.7 applies to those "who personally inflict great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony." Thus, facially, it is unclear whether Ortiz-Magana personally committed the offense.

The plea transcript lends further support to Ortiz-Magana's theory that he was not convicted as a principal. At the plea hearing, the following exchange occurred between the judge and the prosecutor:

Judge: For clarification on the record, there is charged in the Information a [count for violating Penal Code] 12022.7(a). It is my understanding that may have been an error. In any event that is going to be stricken.

Is that correct?

District Attorney: That's correct. That's always been an aiding and abetting on the 245(a)(5) and [Ortiz-Magana] did not personally inflict great bodily injury.

Judge: Therefore, Mr. Magana, it appears you will be eligible for half time credits[.]

During the immigration proceedings, the attorney for the government examined the relevant penal code sections and confirmed that "I don't see that there's an (a)(5).... They may have referred to the (a)(1), showing that there's an aiding and abetting within the (a)(1)." The IJ agreed: "There's no (a)(5) that I can see directly under the California Penal Code. The transcript may have an error on it." As a result, the IJ continued the hearing for fifteen days so that the parties could clarify Ortiz-Magana's role in the offense.

On January 18, 2006, the parties again appeared, and Ortiz-Magana submitted an affidavit from his former defense attorney, which provides in relevant part:

2. Mr. Magana pled guilty to aiding and abetting an assault with a deadly weapon with a gang enhancement in this matter.

3. I am informed and believe that Mr. Magana did not plead guilty to any personal use allegations, including use of the knife or causing great bodily injury.

For its part, DHS submitted an affidavit from the state's prosecuting attorney in the matter. The assistant district attorney averred that "Section 245(a)(5) does not and has never existed.... Any plea transcript in the above entitle[d] case reflecting the defendant pleading guilty to any code section other than Penal Code Section 245(a)(1) is errant." The district attorney also insisted that Ortiz-Magana "ple[]d guilty to a violation of California Penal Code Section 245(a)(1) (assault with a deadly or dangerous weapon with force likely to commit great bodily injury) and admitted the special allegation under Penal Code Section 186.22(b)(1) that he committed the assault with the deadly weapon to benefit a criminal street gang."

After considering the affidavits, the fact that no section 245(a)(5) exists under California law, and the information and abstract of judgment, the IJ concluded that Ortiz-Magana personally committed the assault, and the crime was one of violence and an aggravated felony rendering him ineligible for discretionary cancellation of removal. The IJ explained:

The Court also finds that in this specific case there is no accessory issue and or aiding and abetting issue. There is no princip[a]l issue as listed by the various Ninth Circuit case decisions. [Ortiz-Magana] was convicted of a substantive aggravated felony, crime of violence, sentenced to one year or more.

Ortiz-Magana timely appealed to the BIA. Represented by counsel, he argued that (1) aiding and abetting is included under California Penal Code section 245(a)(1); (2) under our decision in Penuliar v. Ashcroft, 435 F.3d 961 (9th Cir.2006), vacated, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), his conviction for aiding and abetting an assault with a deadly weapon was not an aggravated felony; and (3) because a crime of violence as contemplated by 18 U.S.C. § 16 excludes aiding and abetting, he was not convicted of an aggravated felony. Thereafter, DHS moved for summary affirmance.

On May 23, 2006, the BIA issued a written decision affirming the IJ's determination. The BIA concluded:

[Ortiz-Magana] does not dispute that section 245(a)(1) of the California Penal Code qualifies as a crime of violence. [Ortiz-Magana] was convicted of that offense. He thus meets the requirement for removability under the literal language of the statute. It does not matter how [he] committed the crime or whether he was convicted as a principal or for aiding and abetting the crime. In either case he was still convicted of a crime that is "a...