Hector Ruvalcaba-Castorena v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 29 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR RUVALCABA-CASTORENA, No. 12-74002
Petitioner, Agency No. A044-547-634
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2016**
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Hector Ruvalcaba-Castorena petitions for review of the Board of
Immigration Appeals (BIA)’s order affirming the denial of his application for
cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The BIA did not err in holding that Ruvalcaba-Castorena had not met his
burden of demonstrating that his state law conviction as a felon in possession of
ammunition did not qualify as an aggravated felony as defined in the Immigration
and Nationality Act (INA), 8 U.S.C. § 1101(a)(43). Courts employ a “categorical
approach” to determine whether a state law violation constitutes an aggravated
felony under the INA. Alanis-Alvarado v. Holder, 558 F.3d 833, 836 (9th Cir.
2009) (citing Taylor v.United States, 495 U.S. 575 (1990)). “[I]f the ‘full range of
conduct’ covered by the state statute falls within the scope of the INA provision,
then the petitioner’s conviction is categorically a removable offense.” Id.
Ruvalcaba-Castorena was convicted of being a felon in possession of
ammunition under California Penal Code § 12316(b)(1),1 which provided that no
one convicted of theft or grand theft under certain California statutes “shall own,
possess, or have under his or her custody or control, any ammunition or reloaded
ammunition.” Section 1101(a)(43) of the INA defines an aggravated felony to
include “an offense described in . . . section 922(g)(1) . . . of Title 18 (relating to
firearms offenses).” 8 U.S.C. § 1101(a)(43)(E)(ii). Section 922(g)(1), in turn,
makes it a crime for a felon to receive “any firearm or ammunition which has been
1
Section 12316(b) was repealed in 2010. A similar provision now appears at
California Penal Code § 30305.
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shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).
Ruvalcaba-Castorena argues that the “relating to firearms offenses” language in the
INA limits the definition of an aggravated felony to exclude those convictions that
involved only ammunition. However, we have held repeatedly that the INA’s
“relating to” language “merely describes and does not limit . . . offenses that may
be a predicate for the aggravated felony.” Castro-Espinosa v. Ashcroft, 257 F.3d
1130, 1132 (9th Cir. 2001) (internal quotation marks omitted); see also Rodriguez-
Valencia v. Holder, 652 F.3d 1157, 1159 (9th Cir. 2011). Ruvalcaba-Castorena’s
conviction for being a felon in possession of ammunition falls squarely within the
definition of an aggravated felony in the INA.
Ruvalcaba-Castorena also argues that the Immigration Judge (IJ) erred in
failing to provide a legal citation for his holding that there is no substantial
difference between California Penal Code § 12316(b)(1) and 18 U.S.C. § 922(g)(1)
even though the federal statute requires that ammunition be shipped or transported
in interstate or foreign commerce and the state statute does not. There was no error,
because the IJ accurately described and applied the law. “[T]he commerce nexus
requirement of § 922(g) is merely a jurisdictional basis” and, as a result, does not
present an impediment to finding that a state court conviction constitutes an
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aggravated felony under the INA. United States v. Castillo-Rivera, 244 F.3d 1020,
1023 (9th Cir. 2001) (internal citations omitted).
PETITION FOR REVIEW DENIED.
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