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Carjacking Is Not a ‘Crime of Violence’ Justifying Deportation—Ninth Circuit
California Statute Is Categorical Match for Analogous Federal Statute, Opinion Says
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a carjacking conviction under California Penal Code §215 does not categorically qualify as an aggravated felony “crime of violence” for purposes of deportation as the state statute—unlike its federal counterpart—permits prosecution where the taking was accomplished without force and imposes a lower intent requirement.
Senior Circuit Judge Richard R. Clifton authored the opinion partially granting a petition for review of a dismissal by the Board of Immigration Appeals (“BIA”) of an appeal from a deportation order based on the §215 conviction. The court remanded for further consideration of whether the petitioner may properly be removed due to having committed two crimes of moral turpitude.
Circuit Judge Johnnie B. Rawlinson and Senior Circuit Judge Andrew D. Hurwitz joined in the opinion.
Statutory Scheme
The government relied on a federal statute providing that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” An aggregated felony, in turn, is described in another statute as including “a crime of violence” as eleshere denied “for which the term of imprisonment [is] at least one year.”
The federal carjackjing statute, 18 U.S.C. §16(a), proscribes “the use, attempted use, or threatened use of physical force against the person or property of another.”
Penal Code §215(a) provides:
“ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”
Removal Proceedings
Petitioning for review of the BIA decision was Sergio Manrique Gutierrez, who came to the U.S. from El Salvador as a young child with his family in 1986 and became a lawful permanent resident shortly after arriving. In 2006, Gutierrez was convicted of felony carjacking in violation of §215(a), triggering removal proceedings.
The immigration judge sustained a crime of violence charge based on the 2006 carjacking and a moral turpitude allegation based on claims that he committed two qualifying crimes, despite the fact that no proof was offered to establish an alleged petty theft conviction.
The BIA dismissed Gutierrez’s subsequent appeal, agreeing with the immigration judge’s determination that §215(a) is a crime of violence under the federal scheme, but declining to address the moral turpitude charge. Gutierrez filed a petition for review with the Ninth Circuit.
After Gutierrez hired new counsel and filed a motion to reopen the case, the BIA again rejected Gutierrez’s argument that a carjacking under California law is not a crime of violence. The appeals board declined to reopen the case to consider new evidence of mental incompetency and ineffective assistance of counsel claims.
He again petitioned for review, creating a second case before the Ninth Circuit. Both cases were consolidated before the Circuit Court.
Fear Alone
Clifton said:
“On a plain reading, section 215 defines carjacking more broadly than section 16(a) by not requiring the use of force. Section 215 contains the disjunctive ‘or’ between ‘fear’ and ‘force,’ indicating that a defendant need not use force; accomplishing carjacking through fear alone is sufficient.”
Gutierrez pointed to a case in which a carjacking conviction was not premised on the use of any force and instead was based on fear alone, which Clifton said establishes a realistic probability of prosecution.
He declared that “we conclude that California carjacking is not a categorical crime of violence” based on the plain language and the realistic probability of prosecution for conduct not prohibited by the federal definition.
The case is Gutierrez v. Garland, 21-130.
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