Solorio-Ruiz v. Sessions

• Decision Date: 29 January 2018
• Docket Number: No. 16-73085,16-73085
• Citation: 881 F.3d 733
• Parties: Roberto SOLORIO-RUIZ, AKA Alejandro Cervantes-Calderon, AKA Manuel Ortiz Espinosa, AKA Mark Anthony Lopez, AKA Robert Salazar, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

881 F.3d 733

Roberto SOLORIO-RUIZ, AKA Alejandro Cervantes-Calderon, AKA Manuel Ortiz Espinosa, AKA Mark Anthony Lopez, AKA Robert Salazar, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-73085

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2017 San Francisco, California

Filed January 29, 2018

Jayashri Srikantiah (argued), Supervising Attorney; Brittany Benjamin (argued) and Adam Hersh (argued), Certified Law Students; Immigrants' Rights Clinic, Mills Legal Clinic, Stanford Law School, Stanford, California; for Petitioner.

Melissa K. Lott (argued), Trial Attorney; Melissa Neiman-Kelting, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Jennifer G. Zipps,^** District Judge.

GRABER, Circuit Judge:

Petitioner Roberto Solorio-Ruiz, a native and citizen of Mexico, petitions for review of a final order of removal. Petitioner stands convicted of carjacking in violation of California Penal Code § 215(a). An immigration judge ("IJ") ruled that Petitioner's crime of conviction is an aggravated felony, making him ineligible for relief from removal, because (1) the carjacking offense is a crime of violence, and (2) the carjacking offense is a theft offense. The Board of Immigration Appeals ("BIA") affirmed on the first ground and did not reach the second. We review de novo whether a particular conviction under state law counts as a removable offense. Arellano Hernandez v. Lynch , 831 F.3d 1127, 1130 (9th Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2180, 198 L.Ed.2d 232 (2017). For the reasons that follow, we hold that a California conviction under section 215(a) does not qualify as a crime of violence. We grant the petition to that extent and remand the case to the BIA to decide, in the first instance, whether Petitioner's offense qualifies as a theft offense.

FACTUAL AND PROCEDURAL BACKGROUND

In 1995, a California jury convicted Petitioner of carjacking in violation of California Penal Code § 215(a), and evading a police officer in violation of California Vehicle Code § 2800.2. Petitioner was sentenced to 10 years' imprisonment on the carjacking charge and to one year and four months on the evading charge, plus enhancements that made the total sentence of confinement 21 years and four months. Thereafter, the government sought to remove Petitioner on the ground that the carjacking conviction is an "aggravated felony" within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii). The government advanced two theories: that Petitioner committed a "crime of violence," 8 U.S.C. § 1101(a)(43)(F), and that he committed a "theft offense," id. § 1101(a)(43)(G).

After a series of proceedings concerning Petitioner's representation and citizenship status, the details of which are not relevant to the issues before us, the IJ ruled that Petitioner is removable. But the IJ continued the hearing to allow Petitioner to file an application for relief from removal. Petitioner submitted an application for relief under former 8 U.S.C. § 1182(c) ("§ 212(c) waiver"), which was available to lawful permanent residents who had been lawfully domiciled in the United States for seven consecutive years. See INS v. St. Cyr , 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that a § 212(c) waiver remains available in certain circumstances); In re Abdelghany , 26 I. & N. Dec. 254 (B.I.A. 2014) (discussing eligibility for a § 212(c) waiver).

The government then moved to pretermit the application, arguing that Petitioner was ineligible for a § 212(c) waiver. A § 212(c) waiver is not available if the applicant served an aggregate of more than five years of imprisonment for an aggravated felony. Petitioner concededly served a sentence of more than five years for the carjacking offense, but he disputed the government's contention that carjacking qualifies as an aggravated felony. The IJ granted the government's motion on the ground that the carjacking statute qualified as a crime of violence and as a theft offense.

Petitioner timely appealed to the BIA. He challenged both categorizations of his conviction. The BIA held that the carjacking offense is a crime of violence and dismissed the appeal on that ground. The BIA did not reach the question whether the crime of conviction qualifies as a theft offense. Petitioner timely sought review in this court.

DISCUSSION

A. Crime of Violence

We must begin with Nieves-Medrano v. Holder , 590 F.3d 1057, 1058 (9th Cir. 2010) (order), which squarely held that "a conviction for carjacking under California Penal Code § 215 is categorically a ‘crime of violence’ under 8 U.S.C. § 1101(a)(43)(F)." If Nieves-Medrano remains good law, that is both the beginning and the end of the case.

But we are bound by "intervening higher authority"; if a later, controlling authority is "clearly irreconcilable" with our earlier precedent, we "should reject the prior circuit opinion as having been effectively overruled." Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc). In 2010, the United States Supreme Court issued Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which held that the physical force that a crime of violence entails¹ must be "violent force—that is, force capable of causing physical pain or injury to another person." Johnson altered our understanding of how violent a crime must be to qualify as a crime of violence. See United States v. Geozos , 870 F.3d 890, 901 (9th Cir. 2017) (holding, directly contrary to a pre- Johnson memorandum disposition in the same case, that a robbery conviction under section 812.13(1) of the Florida Statutes did not, under Johnson , categorically qualify as a violent felony).

Nieves-Medrano cannot stand in light of Johnson . In Nieves-Medrano , we said nothing about the level of violence required to violate California Penal Code § 215(a). Instead, we rested our decision entirely on United States v. Becerril-Lopez , 541 F.3d 881, 893 (9th Cir. 2008), in which we held that robbery under section 211 was categorically a crime of violence under the Sentencing Guidelines. Nieves-Medrano , 590 F.3d at 1057–58. Becerril-Lopez , too, lacks an analysis of the level of violence required to commit California robbery.² Thus, neither Nieves-Medrano nor the sole case on which it relied demonstrates that we considered, at all, whether section 215(a) requires the use of violent force. Johnson —and the violence requirement that it announced—thus fatally undermined our decision in Nieves-Medrano , and we must consider anew whether California carjacking, after Johnson , qualifies as a crime of violence. See United States v. Molinar , 876 F.3d 953, 958 (9th Cir. 2017) (holding that Johnson "effectively overruled" our decision in United States v. Taylor , 529 F.3d 1232 (9th Cir. 2008), by changing the crime-of-violence analysis); United States v. Flores-Cordero , 723 F.3d 1085, 1088 (9th Cir. 2013) ("We must now [after Johnson ] conclude that conviction of ‘resisting arrest’ under Arizona law is not categorically a crime of violence within the meaning of federal law, and that our decision in Estrada-Rodriguez[ v. Mukasey , 512 F.3d 517 (9th Cir. 2007) ], to the extent it suggests otherwise, has been superseded by controlling, intervening authority.").

To decide whether California carjacking constitutes a crime of violence after Johnson , we employ the categorical approach. That is, we consider whether every violation of the statute necessarily involves violent force. Moncrieffe v. Holder , 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). In that inquiry, we look at "both the text of the state statute and the state courts' interpretations of the statute's terms," and we treat state cases examining "the outer contours of the conduct criminalized by the state statute" as "particularly important." United States v. Strickland , 860 F.3d 1224, 1226–27 (9th Cir. 2017) (internal quotation marks omitted).

Recently, in People v. Hudson , 11 Cal.App.5th 831, 217 Cal.Rptr.3d 775, 782 (2017), the California Court of Appeal clarified the level of "force or fear" required to sustain a state conviction for carjacking. The court explained that California carjacking "requires only force in excess of that required to seize the vehicle," however slight that may be. Id. Beyond that, the amount of force used is irrelevant. People v. Lopez , 8 Cal.App.5th 1230, 214 Cal.Rptr.3d 618, 622 (2017). California's carjacking statute thus does not require the violent force that Johnson demands of a crime of violence.

Hudson 's facts are illustrative. There, the defendant took a car from a car dealership. Hudson , 217 Cal.Rptr.3d at 776. As the defendant began to drive the car away, an employee tried to stop him by banging on the trunk, opening the driver's door, and trying to grab the defendant. Id. at 776–77. There was no evidence that the defendant drove the car forcefully or fast. Id. at 777. But the movement of the car at about 5 to 10 miles per hour, while the dealership employee was attempting to stop the defendant, was sufficient "force" to support a conviction. Id. That was so because, in California, "the application of force inherent [in driving a vehicle away]" is enough to sustain a carjacking conviction, whenever the victim puts up the slightest resistance. Id. at 782 ; see also People v. Magallanes , 173 Cal.App.4th 529, 92 Cal.Rptr.3d 751, 755 (2009) ("Defendant's action of attempting to drive away ... was sufficient."). It thus cannot be said that California carjacking requires the use of violent force. As Hudson shows, one can satisfy section 215(a)'s force requirement by driving a car at a slow speed—i.e., at a non-violent speed—and without harming a person or property. Because California carjacking does...