Penuliar v. Ashcroft

• Decision Date: 12 January 2005
• Docket Number: No. 03-71578.,03-71578.
• Citation: 395 F.3d 1037
• Parties: Nopring Paulino PENULIAR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

395 F.3d 1037

Nopring Paulino PENULIAR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-71578.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2004.

Filed January 12, 2005.

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Melanie Jo Triebel, O'Melveny & Myers LLP, Newport Beach, CA, for the petitioner.

Nicole Nardone (argued) and Jennifer Paisner (briefed), Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A44-948-659.

Before: BROWNING, PREGERSON, and BERZON, Circuit Judges.

PREGERSON, Circuit Judge.

Nopring Paulino Penuliar petitions for review of a decision of the Board of Immigration Appeals ("BIA"). Penuliar, a lawful permanent resident, pled guilty to two counts of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a). Classifying both convictions as "aggravated felonies" under the Immigration and Nationality Act ("INA"), an Immigration Judge ("IJ"), affirmed by the BIA, found Penuliar ineligible for cancellation of removal and voluntary departure, and ordered that Penuliar be deported pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Because we conclude that Penuliar's convictions do not constitute "aggravated felonies" under the INA, we grant his petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Nopring Paulino Penuliar, a citizen of the Philippines, was admitted to the United States on June 12, 1995, as a lawful permanent resident. On June 30, 2000, Penuliar pled guilty to one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and was sentenced to two years' imprisonment. On December 13, 2000, Penuliar pled guilty to another count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a). He was sentenced to three years' imprisonment for each charge, to be served concurrently.

While serving his sentence in state prison, the Immigration and Naturalization Service ("INS")¹ served Penuliar with a notice to appear.² In the notice to appear, the INS alleged that Penuliar was removable for being convicted of "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," an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). The INS also alleged that Penuliar was removable for being convicted of "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year," an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G).

At Penuliar's removal hearing, the government introduced into evidence a felony complaint charging Penuliar with, inter alia, one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and a corresponding abstract of judgment showing that Penuliar pled guilty to that count. The government also introduced a criminal information charging Penuliar with, inter alia, one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a), and a corresponding abstract of judgment showing that Penuliar pled guilty to both counts. Finally, the government introduced a probation report detailing the conduct underlying the charges in the criminal information.

Based on this evidence, the IJ concluded that Penuliar's two convictions for unlawful driving or taking of a vehicle were "theft offense[s]" under 8 U.S.C. § 1101(a)(43)(G), and that Penuliar's conviction for evading an officer was a "crime of violence" under 8 U.S.C. § 1101(a)(43)(F). Accordingly, the IJ ruled that Penuliar was removable as an "aggravated felon" under 8 U.S.C. § 1227(a)(2)(A)(iii), and therefore ineligible for cancellation of removal and voluntary departure. See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1).

On March 31, 2003, the BIA summarily affirmed the decision of the IJ. See 8 C.F.R. § 1003.1(e)(4). Penuliar timely filed this petition for review.

JURISDICTION AND STANDARD OF REVIEW

This court lacks jurisdiction to review a final order of removal against an alien who has committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). Nonetheless, "[b]ecause the issue in this appeal is whether [the petitioner] committed an aggravated felony, and because we have jurisdiction to determine our own jurisdiction, the jurisdictional question and the merits collapse into one." Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000) (citation omitted).

We review de novo whether a particular offense is an aggravated felony. Id.

DISCUSSION

To determine whether a conviction is an "aggravated felony" under the INA, we employ the two step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). First, "we look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43)." Id."Under this `categorical approach,' an offense qualifies as an aggravated felony `if and only if the full range of conduct covered by the[criminal statute] falls within the meaning of that term.'" Id. (quoting United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999)).

However, when the statute of conviction reaches both conduct that would constitute an aggravated felony and conduct that would not, we follow a "modified categorical approach." See id.; United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc). Under this approach, we conduct "a limited examination of documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime." Chang, 307 F.3d at 1189. "[W]e do not, however, look to the particular facts underlying the conviction." Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 (9th Cir.2003) (quoting Ye, 214 F.3d at 1132).

I. Evading an Officer

A. Categorical Approach

Under 8 U.S.C. § 1101(a)(43)(F), the term "aggravated felony" 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." Title 18 U.S.C. § 16, in turn, defines the term "crime of violence" to mean:

(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.

We have construed 18 U.S.C. § 16 as requiring more than mere negligent conduct. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1145 (9th Cir.2001) ("[W]e hold that the presence of the volitional `use ... against' requirement in both prongs of 18 U.S.C. § 16 means that a defendant cannot commit a `crime of violence' if he negligently — rather than intentionally or recklessly — hits someone or something...."). Thus, in Trinidad-Aquino we held that because California's driving under the influence statute, California Vehicle Code § 23153, can be violated through mere negligence, a violation of the statute was not a "crime of violence" under 18 U.S.C. § 16. Id. at 1146.

The Supreme Court recently affirmed this reading of 18 U.S.C. § 16, holding that a conviction under Florida's drunk driving statute was not a "crime a violence." Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 383-84, ___ L.Ed.2d ___ (2004). The Court reasoned that "[t]he key phrase in § 16(a) — the `use ... of physical force against the person or property of another' — most naturally suggests a higher degree of intent than negligent or merely accidental conduct." Id. at 382. Similarly, the Court held that we "must give the language in § 16(b) an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense." Id. at 383. The Court concluded that "[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the `violent' crimes Congress sought to distinguish for heightened punishment and other crimes." Id.

California Vehicle Code § 2800.2(a) makes it a crime "[i]f a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." The statute further provides that "willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs." Cal. Veh.Code § 2800.2(b).

As defined by subsection (b), "willful or wanton disregard" exists if a driver commits three Vehicle Code violations. As one court explained,

[a]lthough Vehicle Code section 2800.2 uses the phrase `willful or wanton disregard for the safety of persons or property' to describe an element of reckless evading, the statute defines this element so that it may be satisfied by proof of property damage or by proof that the defendant committed three Vehicle Code violations.

People v. Pinkston, 112 Cal.App.4th 387, 392, 5 Cal.Rptr.3d 274 (2003) (emphasis added). Many California Vehicle Code violations, however, do not require...