Chetwyn Archer v. Loretta E. Lynch , 610 F. App'x 631 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHETWYN EVERARD ARCHER, No. 09-73951
Petitioner, Agency No. A098-800-904
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2015**
Pasadena, California
Before: PREGERSON and NGUYEN, Circuit Judges and WHALEY,*** Senior
District Judge.
Chetwyn Archer, a citizen of the United Kingdom, petitions for review of a
Board of Immigration Appeals (BIA) decision denying his motion to reopen his
*
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 Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
removal proceedings and affirming his final order of removal. We have
jurisdiction under 8 U.S.C. § 1252(a), and we grant the petition.
1. The BIA properly determined that it lacked jurisdiction to consider
Archer’s attempt to collaterally attack the criminal conviction forming the basis of
his removability. “[T]he [BIA] cannot entertain a collateral attack on a judgment
of conviction, unless that judgment is void on its face.” Matter of Rodriguez-
Carrillo, 22 I. & N. Dec. 1031, 1034 (B.I.A. 1999). There is nothing in the record
to suggest that Archer has successfully challenged the validity of his plea in state
court, which is the proper venue for raising such a claim. See Contreras v.
Shiltgen, 122 F.3d 30, 33 (9th Cir. 1997), aff’d on reh’g, 151 F.3d 906 (9th Cir.
1998) (noting that the validity of a state court conviction “can only be tested in an
action against the state”).
2. The BIA concluded that Archer’s guilty plea to California Penal Code §
166(c)(1) subjects him to removal under 8 U.S.C. § 1227(a)(2)(E)(ii). Though the
government argues that this is the correct result under the modified categorical
approach, the BIA’s opinion does not explain how it reached this conclusion. “In
order for the court to exercise our limited authority, there must be a reasoned
explanation by the BIA of the basis for its decision.” Franco-Rosendo v. Gonzales,
454 F.3d 965, 966 (9th Cir. 2006). In the absence of such an explanation, remand
2
is appropriate to allow the BIA to provide its analysis. See, e.g., Arredondo v.
Holder, 623 F.3d 1317, 1320 (9th Cir. 2010) (remanding when the BIA “fail[ed] to
engage in a substantive analysis” of a crime’s immigration consequences).
Moreover, since the BIA last considered this case, Descamps v. United States, 133
S. Ct. 2276 (2013), and Matter of Chairez-Castrejon, 26 I. & N. Dec. 349 (BIA
2014), have explained the proper application of the categorical and modified
categorical approaches. “In light of these significant intervening developments, we
remand for the BIA to reconsider whether” Archer’s conviction for California
Penal Code § 166(c)(1) makes him removable under INA § 237(a)(2)(E)(ii).
Pannu v. Holder, 639 F.3d 1225, 1229 (9th Cir. 2011).1
PETITION GRANTED and REMANDED for further proceedings
consistent with this disposition.
1
Although Archer did not raise this argument before the BIA or before this
court, the government fully briefed the modified categorical approach issue.
Therefore, it “suffers no prejudice from [Archer]’s failure to properly raise the
issue.” Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).
3