Jeremy Naidoo v. Eric Holder, Jr. , 486 F. App'x 692 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEREMY NAIDOO, No. 11-71135
Petitioner, Agency No. A073-849-748
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Jeremy Naidoo, a native and citizen of South Africa and a lawful permanent
resident of the United States, petitions for review of a decision by the Board of
Immigration Appeals (“BIA”). The BIA upheld the immigration judge’s ruling
*
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).
that Naidoo’s first-degree residential burglary conviction, for violating California
Penal Code § 459, constituted a crime of violence under 18 U.S.C. § 16(b) and
therefore was an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), rendering him
removable. We review de novo the BIA’s conclusion regarding whether an offense
qualifies as an aggravated felony, see Kwong v. Holder, 671 F.3d 872, 876 (9th
Cir. 2011), and we deny the petition for review.
The government contends that we do not have jurisdiction to consider
Naidoo’s petition for review. We reject that contention. We have jurisdiction to
review questions of law raised in a petition for review, including the legal question
of whether an offense is an aggravated felony for purposes of removal. 8 U.S.C. §
1252(a)(2)(D); Kwong, 671 F.3d at 876. Because Naidoo has raised a colorable
legal claim concerning whether his prior conviction qualifies as an aggravated
felony, we have jurisdiction to consider his petition. See Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); see also Kwong, 671 F.3d at 876-79(recognizing that this court had jurisdiction to consider a petition for review which
argued that a prior conviction was not an aggravated felony, but rejecting
petitioner’s argument).
We hold that Naidoo’s prior conviction for first-degree residential burglary,
in violation of California Penal Code § 459, categorically qualifies as a crime of
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violence under 18 U.S.C. § 16(b). See Lopez-Cardona v. Holder, 662 F.3d 1110,
1112-14 (9th Cir. 2011); see also United States v. Ramos-Medina, 682 F.3d 852,
855-58 (9th Cir. 2012); Kwong, 671 F.3d at 877-79. Naidoo therefore was
convicted of an aggravated felony after being admitted to the United States and is
removable. See 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C. § 1227(a)(2)(A)(iii).
PETITION FOR REVIEW DENIED.
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