Penuliar v. Mukasey
| Decision Date | 22 April 2008 |
| Docket Number | No. 03-71578.,03-71578. |
| Citation | 528 F.3d 603 |
| Parties | Nopring Paulino PENULIAR, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joel S. Feldman, Paul J. Zidlicky, and Melanie Jo Triebel, Sidley Austin LLP, Chicago, IL, for the petitioner.
Jennifer Paisner, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent.
On Remand from the United States Supreme Court. Agency No. A44-948-659.
Before: JAMES R. BROWNING, HARRY PREGERSON, and MARSHA S. BERZON, Circuit Judges.
The Opinion filed April 22, 2008, slip op. 4219, 523 F.3d 963, is amended as follows:
1. At slip op. 4226-27, 523 F.3d at 967-68, replace the two paragraphs that begin
"We have construed ... > and end punishment and other crimes." Id. > with We have construed 18 U.S.C. § 16 as requiring more than mere negligent or reckless conduct. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir.2006) (en banc) () (citing Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)); see also Leocal, 543 U.S. at 11-13, 125 S.Ct. 377 ().>.
2. At slip op. 4228, 523 F.3d at 968, replace the sentences that begin California vehicle violations ... > and end <... is broader>
than a "crime of violence" as defined by 18 U.S.C. § 16.> with
3. At slip op. 4228, 523 F.3d at 968, keep footnote 3 following the sentence that ends <... negligent disregard for the safety of persons or property.>.
4. At slip op. 4229-30, 523 F.3d at 968-69, replace the sentences that begin
5. At slip op. 4230, 523 F.3d at 969, keep footnote 5 following the sentence
that ends <... the generic statutory language from class="ldml-entity">California Vehicle Code § 2800.2(a).>.
Future petitions for panel rehearing and rehearing en banc will be entertained. See General Order 5.3(a).
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).
We granted Penuliar's petition for review, Penuliar v. Gonzales, 435 F.3d 961 (9th Cir.2006), but the Supreme Court vacated our decision, Gonzales v. Penuliar, ___ U.S. ___, 127 S.Ct. 1146, 166 L.Ed.2d 992 (2006), and remanded to us for further proceedings in light of Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).
Because we again conclude that Penuliar's convictions do not constitute "aggravated felonies" under the INA, we grant his petition for review.
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.
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.
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. I.N.S., 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." Chang, 307 F.3d at 1189. 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." Id. "[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).
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
...
To continue reading
Request your trial
-
United States v. Garcia-Santana
...definition of an aggravated felony.” Ngaeth v. Mukasey, 545 F.3d 796, 800 (9th Cir.2008) (per curiam) (quoting Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir.2008), abrogated on other grounds as recognized in United States v. Martinez, 771 F.3d 672, 677–78 (9th Cir.2014)). By contrast, whe......
-
Young v. Holder
...a guilty plea to an overly inclusive charge does not establish that the defendant was convicted of a generic crime); Penuliar v. Mukasey, 528 F.3d 603, 612–14 (9th Cir.2008) (same); United States v. Forrester, 616 F.3d 929, 945 (9th Cir.2010) (noting that the court “declin[es] to treat guil......
-
United States v. Garcia-Santana
...definition of an aggravated felony.” Ngaeth v. Mukasey, 545 F.3d 796, 800 (9th Cir.2008) (per curiam) (quoting Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir.2008), abrogated on other grounds as recognized in United States v. Martinez, 771 F.3d 672, 677–78 (9th Cir.2014) ). By contrast, wh......
-
Rodriguez v. Robbins
...remand from the Supreme Court, our court held that driving a stolen vehicle did not qualify as an aggravated felony. Penuliar v. Mukasey, 528 F.3d 603, 614 (9th Cir.2008). On motion of the parties, we then remanded Rodriguez's petition to the BIA, which granted his application for cancellat......