On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A039-719-895.
The opinion of the court was delivered by: Callahan, Circuit Judge
Argued and Submitted April 14, 2010 -- San Francisco, California.
Before: Alex Kozinski, Chief Judge, Consuelo M. Callahan, Circuit Judge, and Ricardo S. Martinez, District Judge.*fn1
Jose Banuelos-Ayon ("Banuelos-Ayon" or "petitioner") is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on July 3, 1985. Following his 2000 conviction for a domestic violence offense, Banuelos-Ayon was charged with removability for committing a crime of violence pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). On October 26, 2006, Banuelos-Ayon conceded removability and submitted an application for cancellation of removal. The BIA denied his application, holding that his conviction under California Penal Code § 273.5(a) is categorically a crime of domestic violence. We agree and deny his petition for review.
In Spring 2000, Banuelos-Ayon and his girlfriend - the mother of his children - were engaged in a heated argument. At some point during the argument petitioner's girlfriend drove away because "she never wanted to see [BanuelosAyon] again." Banuelos-Ayon chased after her in his car. He tried to block her car in at a stop sign "simply so [they] could talk." As a result, the two vehicles collided, and his girlfriend was injured. Banuelos-Ayon left the scene of the accident and was later arrested at his place of work.
On April 5, 2000, he pleaded guilty to "Corporal Injury to a Spouse/Cohabitant" in violation of California Penal Code § 273.5(a) and to a sentencing enhancement under California Penal Code § 12022(b) for use of a deadly weapon in the commission of the offense. On September 12, 2006, the Department of Homeland Security ("DHS") issued a Notice to Appear charging Banuelos-Ayon with being removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). Banuelos-Ayon conceded the charge of removability and on October 26, 2006, submitted an application for cancellation of removal.
On December 20, 2006, the Immigration Judge ("IJ") issued a written decision and two separate orders. In the first order, the IJ held that Banuelos-Ayon was not removable because DHS failed to establish by clear and convincing evidence that he had been convicted of a crime of domestic violence within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). In the second order, the IJ concluded that if the BIA determined Banuelos-Ayon was removable because his conviction qualified as a crime of domestic violence, his application for cancellation of removal would be denied as a matter of discretion.
Both parties appealed the IJ's rulings to the BIA. On April 23, 2007, the BIA reversed the IJ's holding terminating the removal proceedings and affirmed the IJ's alternative holding denying cancellation of removal. With respect to removability, the BIA held that § 273.5(a) categorically qualified as a crime of domestic violence under 18 U.S.C. § 16(a) and (b). It reasoned that "[i]n light of the fact that a person cannot be convicted under section 273.5(a) without willfully using direct physical force of such violence as to cause a traumatic condition to the victim, we are satisfied that the offense has the use of physical force against the person of another as an element." The BIA confined its analysis to the categorical approach and did not address the IJ's findings regarding the modified categorical approach.
Whether a state criminal conviction is a removable offense is reviewed de novo. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n.7 (9th Cir. 2006) (en banc). The BIA's interpretation of whether California Penal Code § 273.5(a) is a crime of violence within the meaning of 18 U.S.C. § 16 is not entitled ...