Argued and Submitted, Pasadena, California November
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A043-733-743.
The panel granted Hector Giovanni Ramirez's petition for review of the Board of Immigration Appeals' decision that his conviction for felony child abuse under California Penal Code § 273a(a) constitutes a crime of violence under 18 U.S.C. § 16 and is therefore an aggravated felony.
The panel held that § 273a(a) does not qualify as a categorical crime of violence because it is broader than the generic federal definition in 18 U.S.C. § 16. The panel also found that § 273a(a) is not a divisible statute, because the alternative mens rea requirements are not elements but are rather alternative means for accomplishing a single indivisible crime. The panel thus found that Ramirez's conviction does not constitute an aggravated felony.
Anna Benvenue (argued) and Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.
Anh-Thu P. Mai-Windle (argued), Senior Litigation Counsel and Thomas B. Fatouros, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.; Tony West, Assistant Attorney General, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Before: Kim McLane Wardlaw and Richard A. Paez Circuit Judges and Matthew F. Kennelly,[*] District Judge.
Richard A. Paez, Circuit Judge:
Hector Giovanni Ramirez petitions for review of the Board of Immigration Appeals's
(" BIA" ) decision that his conviction under California Penal Code section 273a(a) for felony child abuse constitutes a crime of violence under 18 U.S.C. § 16(a) and (b) and therefore qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We conclude that section 273a(a) is not a categorical crime of violence and is not divisible. We thus agree with Ramirez that his conviction does not constitute an aggravated felony, and grant the petition and remand.
Ramirez is a native and citizen of El Salvador. He immigrated to the United States as a lawful permanent resident in 1992, and all of his immediate family members are U.S. citizens. Ramirez graduated from high school in the United States and subsequently enlisted in the U.S. Navy, serving for four years.
In February 2000, Ramirez was convicted of felony child abuse, in violation of section 273a(a), and was sentenced to 8 years and 4 months of imprisonment. Ramirez appealed his conviction, which the California Court of Appeal affirmed.
The Department of Homeland Security commenced removal proceedings against Ramirez in February 2007, alleging that he was subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of a " crime of violence," which is a deportable " aggravated felony" under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. The immigration judge found him removable as charged and ordered him removed. Ramirez appealed to the BIA, arguing that his conviction did not constitute a crime of violence and therefore did not constitute an aggravated felony. The BIA affirmed the IJ, concluding that a) section 273a(a) is a divisible statute; and b) it contained a " direct infliction" prong, which incorporated a mens rea element of general intent, and was therefore a categorical match for the federal definition of a crime of violence. The BIA, employing the modified categorical approach, examined the records of conviction contained in the administrative record and concluded that Ramirez had been convicted of the direct infliction prong. Ramirez filed a timely petition for review.
Although we lack jurisdiction to review the final orders of removal of aliens convicted of certain crimes, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to determine our own jurisdiction. Therefore, when the issue at hand is whether an alien has committed an aggravated felony, " the jurisdictional question and the merits collapse into one." See Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000). Where, as here, the BIA conducts an independent review of the IJ's findings, we review the BIA's decision and not that of the IJ. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1061 (9th Cir. 2008).
" We do not defer [under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)] to BIA interpretations of state law or of provisions of the federal criminal code referenced within, but not part of, the Immigration and Nationality Act," (INA) including 18 U.S.C. § 16. Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1014 (9th Cir. 2006) (citing Parrilla v. ...