William Jimenez Bolanos v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ERNESTO JIMENEZ No. 11-72605
BOLANOS,
Petitioner, Agency No.
A073-850-458
v.
ERIC H. HOLDER JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 11, 2013—Pasadena, California
Filed August 21, 2013
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Graber
2 BOLANOS V. HOLDER
SUMMARY*
Immigration
The panel dismissed William Ernesto Jimenez Bolanos’s
petition for review of the decision of the Board of
Immigration Appeals finding him statutorily ineligible for
cancellation of removal and asylum based on his conviction
for brandishing a firearm in the presence of the occupant of
a motor vehicle, in violation of California Penal Code
§ 417.3.
The panel held that CPC § 417.3 qualifies categorically as
an aggravated felony crime of violence under 18 U.S.C.
§ 16(a), because it has as an element the threatened use of
physical force against another person.
COUNSEL
Barbara J. Darnell-Allen (argued) and Armineh Ebrahimian,
Law Offices of Barbara J. Darnell, Los Angeles, California,
for Petitioner.
Rebecca H. Phillips (argued), Stuart F. Delery, and Ada E.
Bosque, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for
Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOLANOS V. HOLDER 3
OPINION
GRABER, Circuit Judge:
This immigration case raises a single issue: Does a
conviction under California Penal Code section 417.3 count
categorically as a “crime of violence” and therefore as an
“aggravated felony” because of which the convicted person
is ineligible for cancellation of removal? We answer that
question “yes” and, accordingly, dismiss the petition.
Petitioner William Ernesto Jimenez Bolanos is a native
and citizen of El Salvador. He entered the United States as a
legal permanent resident in 1999. About ten years later,
Petitioner pleaded guilty to, and was therefore convicted of,
brandishing a firearm in the presence of the occupant of a
motor vehicle, in violation of California Penal Code section
417.3. He received a 16-month sentence plus a stayed two-
year sentence because of the gang-related nature of the
offense.
The Department of Homeland Security then served on
Petitioner a Notice to Appear, charging that he was
removable under 8 U.S.C. § 1227(a)(2)(C) because, after
admission, he was convicted of a firearm offense. He
admitted the factual allegations in the notice but sought
cancellation of removal, asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
The immigration judge (“IJ”) held that Petitioner’s conviction
was for a “crime of violence” as defined in 18 U.S.C. § 16,
and thereby an “aggravated felony” as defined in 8 U.S.C.
§ 1101(a)(43)(F), making Petitioner statutorily ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a)(3) and for
asylum under 8 U.S.C. § 1158(b)(2)(A)(ii) and (b)(2)(B)(I).
4 BOLANOS V. HOLDER
Further, the IJ denied withholding of removal and CAT relief
on the merits.
Petitioner appealed to the Board of Immigration Appeals
(“BIA”). His sole challenge to the IJ’s decision concerned
the IJ’s ruling that the conviction under section 417.3
qualified as a crime of violence and, therefore, as an
aggravated felony.1 The BIA affirmed the IJ’s conclusion but
issued its own reasoned decision. Among other things, the
BIA relied on both 18 U.S.C. § 16(a) and 18 U.S.C. § 16(b),
writing that
the nature of brandishing a firearm in a
threatening manner against an individual, who
is in the confined space of a moving vehicle,
with close enough proximity that a reasonable
person would apprehend or fear bodily harm,
threatens the use of physical force and
presents a substantial risk that physical force
may be used against the person or property of
another in the course of committing the
offense.
This timely petition for review followed. Because the
BIA issued its own decision without incorporating the IJ’s,
we review only the BIA’s decision. Hosseini v. Gonzales,
471 F.3d 953, 957 (9th Cir. 2006). Under 8 U.S.C.
§ 1252(a)(2)(C), we lack jurisdiction to consider a challenge
to the removal order that rests on a firearm conviction. But
1
Specifically, Petitioner did not challenge the fact or validity of his
conviction; nor did he challenge the IJ’s categorization of it as a firearm
offense, making him removable; nor did he continue to seek asylum or
CAT protection.
BOLANOS V. HOLDER 5
we retain jurisdiction to decide our own jurisdiction and to
resolve questions of law. Malilia v. Holder, 632 F.3d 598,
601–02 (9th Cir. 2011); 8 U.S.C. § 1252(a)(2)(D). We
review those questions of law de novo. Madrigal v. Holder,
716 F.3d 499, 503 (9th Cir. 2013).
To be convicted under section 417.3, the defendant must
“draw[] or exhibit[] any firearm . . . in a threatening manner
against another person [who is an occupant of a motor vehicle
proceeding on a public street or highway] in such a way as to
cause a reasonable person apprehension or fear of bodily
harm.” Thus the statute requires that the defendant (1)
intentionally draw or exhibit a firearm (2) in a threatening
way (3) against a person occupying a motor vehicle on a
public road (4) in such a way that a reasonable target of the
threat actually would fear bodily harm. Because of those
requirements—including the intentional display of a firearm
in a threatening manner, the proximity of the armed person to
another person, and the creation of a reasonable fear that
bodily injury will result—section 417.3 has as an element the
“threatened use of physical force against the person . . . of
another.” 18 U.S.C. § 16(a). An actual use of force is not
required.
The present case fits easily within the analysis set out in
our previous cases that have defined crimes of violence.
In Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 941 (9th Cir.
2004), we held that a conviction for exhibiting a deadly
weapon with intent to evade arrest, under California Penal
Code section 417.8—a neighboring section of the same state
statute at issue here—is categorically a crime of violence and,
therefore, categorically an aggravated felony. Such a crime
6 BOLANOS V. HOLDER
necessarily involves a threatened use of force and thus
qualifies as a crime of violence under 18 U.S.C. § 16(a). Id.Other circuits agree in similar circumstances. See United
States v. King, 673 F.3d 274, 279–80 (4th Cir.) (holding that
a conviction for pointing and presenting a firearm in a
threatening manner categorically qualifies as a crime of
violence because it has as an element the threatened use of
physical force against another), cert. denied, 133 S. Ct. 216(2012); United States v. Pulliam, 566 F.3d 784, 788 (8th Cir.
2009) (“It goes without saying that displaying an operational
weapon before another in an angry or threatening manner
qualifies as threatened use of physical force against another
person.”); United States v. Lane, 252 F.3d 905, 907–08 (7th
Cir. 2001) (“The active use of a gun is a crime of violence in
a way that mere possession of it, even if criminal, is not.”).
Similarly, in United States v. Melchor-Meceno, 620 F.3d
1180, 1186 (9th Cir. 2010), we held that Colorado’s felony
menacing statute was categorically a crime of violence for
sentencing purposes. We reasoned that knowingly placing
another person in fear by menacing with a deadly weapon
contains as an element the threatened use of force. Id. at
1185. That was so even though the perpetrator need not
intend to use force, as distinct from threatening to use force.
Id. at 1184–86.
Other cases also support our conclusion that using a
firearm to place a victim in fear of bodily harm necessarily
includes a threatened use of force. See United States v.
Jennen, 596 F.3d 594, 602 (9th Cir. 2010) (“[P]lacing
someone in apprehension of bodily harm with the specific
intent of so doing while using a deadly weapon requires a
threatened use of physical force.” (internal quotation marks
BOLANOS V. HOLDER 7
omitted)); United States v. De la Fuente, 353 F.3d 766, 770
(9th Cir. 2003) (“[W]e have held that a criminal statute
requiring the creation and use of a ‘fear of . . . unlawful
injury’ includes the element of a ‘threatened use of physical
force.’” (ellipsis in original) (quoting United States v. David
H., 29 F.3d 489, 494 (9th Cir. 1994) (per curiam))).
Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir.
2011), is distinguishable on two important grounds. First, we
examined only whether the crime fit the definition of
18 U.S.C. § 16(b). The BIA “did not address § 16(a).”
Covarrubias Teposte, 632 F.3d at 1052. For that reason, we
expressly declined to address the possible application of
§ 16(a). Id. By contrast, here, we rest our holding only on
§ 16(a).
Second, the statute at issue in Covarrubias Teposte differs
significantly from the one that we are now analyzing.
California Penal Code section 246 prohibits discharging a
firearm at an inhabited house, housecar, or camper, or at an
occupied building, motor vehicle, or aircraft. That statute
defines “inhabited” to mean currently used for a dwelling
purpose, whether or not actually occupied. Id. at 1053–54.
Thus, under the categorical approach, we noted that a person
could be convicted under section 246 merely by shooting
recklessly in close proximity to an empty house. Id. at
1054–55. By contrast, here, to be convicted under section
417.3 the defendant must draw or exhibit a firearm against
another person, and a reasonable person in his or her shoes
must fear bodily harm.
We reject Petitioner’s argument that section 417.3 is
broader than 18 U.S.C. § 16(a) because section 417.3 requires
a lower degree of intent and, therefore, covers reckless and
8 BOLANOS V. HOLDER
negligent conduct. “When interpreting a statute, we must
give words their ordinary or natural meaning.” Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004) (internal quotation marks
omitted). Although, in theory, a person could recklessly or
negligently draw or exhibit a firearm in a threatening manner
against another person, “it is much less natural” to read
section 417.3 as covering such conduct. Id. Put simply,
drawing or exhibiting a firearm in a threatening way against
another person is inconsistent with conduct that is merely
reckless or negligent.
Finally, Petitioner has cited Descamps v. United States,
133 S. Ct. 2276 (2013), in support of his argument that the
BIA should have used the modified categorical approach to
determine whether he was convicted of a crime of violence.
But Descamps held that the modified categorical approach
does not apply to statutes, such as section 417.3, that contain
“a single, indivisible set of elements.” Id. at 2282.
In summary, California Penal Code section 417.3
qualifies categorically as a crime of violence under 18 U.S.C.
§ 16(a). For that reason, Petitioner is an aggravated felon
who is ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a)(3).
Petition DISMISSED.