SAAVEDRA-FIGUEROA v. HOLDER Jr

• Decision Date: 05 November 2010
• Docket Number: No. 05-75210.,05-75210.
• Citation: 625 F.3d 621
• Parties: Mario Eduardo SAAVEDRA-FIGUEROA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

625 F.3d 621

Mario Eduardo SAAVEDRA-FIGUEROA, Petitioner,

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

No. 05-75210.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 15, 2010.

Filed Nov. 5, 2010.

Michael K. Mehr (argued), and Rachael E. Keast, Law Office of Michael K. Mehr, Santa Cruz, CA, for the petitioner.

Tony West, Assistant Attorney General, Civil Division, Bryan S. Beier (argued), Senior Litigation Counsel, and Alison R. Drucker, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A030-036-877.

Before: ALEX KOZINSKI, Chief Judge, GLENN L. ARCHER, JR., Senior Circuit Judge, ^* and CONSUELO M. CALLAHAN, Circuit Judge.

OPINION

CALLAHAN, Circuit Judge:

Mario Saavedra-Figueroa (“Saavedra-Figueroa”) is a native and citizen of Chile who has been a United States lawful permanent resident since 1970. The Board of Immigration Appeals (“BIA”) determined that Saavedra-Figueroa was removable because he had been convicted of an aggravated felony and two crimes of moral turpitude (“CIMTs”) after admission, pursuant to the Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(ii)-(iii), 8 U.S.C. § 1227(a)(2)(A)(ii)-(iii). The aggravated felony conviction was subsequently vacated. Saavedra-Figueroa now petitions for review of the BIA's decision, contending that the remaining two convictions the BIA alleged-for misdemeanor false imprisonment under California Penal Code § 236-are not categorical CIMTs. We agree and grant the petition for review.

I.

In 2005, Saavedra-Figueroa was served with a Notice to Appear (“NTA”) that asserted he was removable under (1) INA § 237(a)(2)(A)(iii) for conviction of an aggravated felony as defined in INA § 101(a)(43)(A) (sexual abuse of a minor); and (2) INA § 237(a)(2)(A)(ii) for conviction of two CIMTs not part of the same criminal scheme. The NTA alleged he had been convicted of gross sexual imposition of a minor in violation of North Dakota Century Code § 12.1-20-03(2), and twice convicted of misdemeanor false imprisonment under California Penal Code § 236.

At a hearing before an immigration judge (“IJ”), Saavedra-Figueroa admitted all three allegations. The IJ, finding that Saavedra-Figueroa's North Dakota conviction was an aggravated felony and his two California convictions were CIMTs, sustained both charges of removability, and ordered him removed to Chile. The BIA affirmed in a per curium order.

Saavedra-Figueroa filed a timely petition for review in this court. ¹ While his appeal was pending, he filed an application for post-conviction relief in a North Dakota state court, seeking to have his guilty plea to the gross sexual imposition charge withdrawn. The state court granted the application and vacated the conviction.

The government then filed in this court an unopposed motion to remand to the BIA for it to determine how the vacated North Dakota conviction affected Saavedra-Figueroa's case. The motion requested that we direct the BIA to “return the case” to us if it determined that Saavedra-Figueroa was removable. We remanded the case to the BIA without indicating whether we would resume control following the BIA's decision.

In March 2007, the BIA ruled that Saavedra-Figueroa's North Dakota conviction was no longer valid for immigration purposes. The BIA vacated its August 2005 decision and remanded the case to the IJ.

Saavedra-Figueroa then filed a motion for reconsideration with the BIA, contending that our remand order required that his case be returned to us. In June 2007, the BIA granted his motion to reconsider, but explained that it could not “return a record of proceedings to [our] court.” Instead, it vacated its March 2007 order insofar as that order remanded proceedings to the IJ. It stated that because its March 2007 order had not revisited Saavedra-Figueroa's removability for his CIMT convictions, its August 2005 determination of removability for those convictions was “a final administrative order of removal from which [Saavedra-Figueroa could] continue to pursue further relief before the Ninth Circuit.”

II.

We determine the existence of our own jurisdiction de novo.

Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir.2000). Saavedra-Figueroa contends that we have jurisdiction over his petition because the BIA's June 2007 order affirmed that its August 2005 decision remains a final, appealable order of removal. The government responds that the BIA's March 2007 order irreversibly vitiated our jurisdiction by rendering the BIA's August 2005 decision non-final.

We lack jurisdiction over a petition for review when the BIA reopens an alien's removal proceedings. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.2002) (the BIA's reopening of the case divested us of jurisdiction); Timbreza v. Gonzales, 410 F.3d 1082, 1083 (9th Cir.2005) (same); accord Yuan Gao v. Gonzales, 464 F.3d 728, 730 (7th Cir.2006) (where the BIA reconsiders a final order of removal, “there is nothing [for the appellate court] to retain jurisdiction of”). As we explained in Cordes v. Mukasey, “The remand for further proceedings is what caused us to lose jurisdiction. Otherwise, this court and the IJ would both have been considering the same thing at the same time: [petitioner's] removal.” 517 F.3d 1094, 1095 (9th Cir.2008).

We conclude that we have jurisdiction over Saavedra-Figueroa's petition for review. When Saavedra-Figueroa filed his petition, the BIA's August 2005 decision was a final order of removal. See 8 U.S.C. § 1101(a)(47)(B); Noriega-Lopez v. Ashcroft, 335 F.3d 874, 882-83 (9th Cir.2003). Because the BIA in June 2007 granted reconsideration of its March 2007 order and affirmed the August 2005 decision with respect to Saavedra-Figueroa's CIMT convictions, that part of the August 2005 decision remains a final order of removal. Cf. Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th Cir.2008) (“Where the BIA's decision granting a motion for reconsideration expressly affirms the BIA's prior decision and its analysis does not significantly differ.... federal court jurisdiction is divested only where the BIA subsequently vacates or materially changes the decision under review.”), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc); Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346, 1351-52 (11th Cir.2005) (court retains jurisdiction when the BIA reconsiders an earlier decision and “explicitly upholds” it).

Unlike the situations presented in Lopez-Ruiz, Timbreza, and Cordes, we are the sole tribunal considering Saavedra-Figueroa's removability. See Lopez-Ruiz, 298 F.3d at 887; Timbreza, 410 F.3d at 1083; Cordes, 517 F.3d at 1095. In addition, the petitioners in those three cases could seek review before an IJ. Saavedra-Figueroa cannot, so a decision that we lack jurisdiction would strip him of his right to obtain review of the BIA's determination that he is removable. ²

III.

Saavedra-Figueroa contends that a misdemeanor violation of California Penal Code § 236 is not a categorical CIMT because conduct that would potentially be morally turpitudinous (such as false imprisonment “effected by violence, menace, fraud, or deceit”) is felony false imprisonment, not misdemeanor false imprisonment. The government declined to brief this issue, preferring to rely entirely on its jurisdictional argument. We assume, however, that the government would have disagreed with Saavedra-Figueroa's contention. ³

A. Legal Standard

The BIA must conduct a two-step analysis to determine whether an alien has been convicted of a categorical CIMT. First, it must interpret the statute and, in certain cases, examine the record of conviction to “determine what offense the [alien] has been convicted of committing.” Marmolejo-Campos, 558 F.3d at 907. We review the BIA's determination of this issue de novo. Id. at 907-08. Second, the BIA must “determine whether the [alien's] conduct meets” the federal generic definition of a CIMT. Id. at 907. If the BIA issues or relies on a precedential determination to conclude that a particular crime is a CIMT, we accord it Chevron deference; otherwise, we defer to the BIA's determination only to the extent that it has power to persuade ( Skidmore deference). Id. at 910-11 (discussing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

B. Decisions Below

The IJ concluded that California Penal Code § 236 was a categorical CIMT because:

This Court believes that the people of the state of California find the personal liberty of their citizens to be of paramount importance. The willful and unlawful violation of that personal liberty for any reason, even perhaps a good faith belief that he was engaging in a citizen's arrest, is of such consequence that an individual acting in that capacity, willfully and unlawfully, enters into a realm in which his actions are considered to be of such substantial moment that the personal liberty of another would be violated, and the Court finds that therefore, this is a crime that is considered vile and heinous by the people of the state of California and any violation of Section 236 is such a crime.

The BIA summarily affirmed the IJ's conclusion.

C. Elements of the Offense

[1] [2] California Penal Code § 236 defines false imprisonment as “the unlawful violation of the personal liberty of another.” It is a general intent crime, because its definition “includes only a description of the particular act without any reference to an intent to do a further act or achieve a further consequence.” People v. Fernandez, 26 Cal.App.4th 710, 717, 31 Cal.Rptr.2d 677 (1994). It “may be committed by acts or by words, or both, and by merely operating upon the will of...