Barragan-Lopez v. Holder , 705 F.3d 1112 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO BARRAGAN -LOPEZ, AKA No. 06-74884
Rogelio Barragan,
Petitioner, Agency No.
A073-834-386
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 October 6, 2009
Submission Withdrawn June 17, 2010
Resubmitted January 22, 2013
Pasadena, California
Filed January 29, 2013
2 BARRAGAN -LOPEZ V . HOLDER
Before: William A. Fletcher, Richard R. Clifton,
and Sandra S. Ikuta, Circuit Judges.*
Opinion by Judge W. Fletcher
SUMMARY**
Immigration
The panel denied in part and dismissed in part Rogelio
Barragan-Lopez’s petition for review from the Board of
Immigration Appeals’ decision finding that his conviction for
false imprisonment, in violation of California Penal Code
§ 210.5, constituted a crime of violence.
The panel held that CPC § 210.5 is a categorical crime of
violence under 18 U.S.C. § 16(b), because it involves a
substantial risk that force may be used. The panel held that
petitioner was thus removable as an aggravated felon.
*
This case was argued and submitted to a panel that included the
Honorable Louis H. Pollak, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation. Following Judge
Pollak’s death, Judge Ikuta was drawn by lot to replace Judge Pollak.
Judge Ikuta read the briefs, reviewed the record, and listened to the oral
argument.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BARRAGAN -LOPEZ V . HOLDER 3
COUNSEL
John M. Levant, ASK LAW GROUP, Los Angeles,
California, for Petitioner.
James A. Hurley, Katharine Clark, Mark Christopher Walters
U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Rogelio Barragan-Lopez, a citizen of Mexico
and lawful permanent resident of the United States, pleaded
guilty to false imprisonment in violation of California Penal
Code § 210.5. An Immigration Judge (“IJ”) subsequently
held that Barragan-Lopez’s conviction under § 210.5
qualified as a crime of violence under 18 U.S.C. § 16(b), and
therefore as an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). The IJ ordered Barragan-Lopez
removed, and the Board of Immigration Appeals (“BIA”)
affirmed. We deny Barragan-Lopez’s petition for review.
I. Background
Barragan-Lopez is a native and citizen of Mexico. He
became a conditional legal permanent resident on August 21,
1998.
In 2004, California charged Barragan-Lopez with false
imprisonment against his daughter “for purposes of protection
from arrest, which substantially increased the risk of harm to
4 BARRAGAN -LOPEZ V . HOLDER
victim and for the purpose of using victim as a shield,” a
felony under California Penal Code § 210.5. Barragan-Lopez
pleaded guilty to the charge. The Superior Court in Los
Angeles sentenced him to three years’ imprisonment.
On February 1, 2006, the government initiated removal
proceedings against Barragan-Lopez. The government
eventually reduced the charges to a single charge of
removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having
committed an “aggravated felony.” The IJ held that
Barragan-Lopez’s conviction under § 210.5 constituted a
categorical crime of violence under 18 U.S.C. § 16(b) – and
hence an aggravated felony – and ordered him removed. The
BIA affirmed, holding that the offense defined by § 210.5
was categorically a crime of violence under § 16(b).
Barragan-Lopez petitioned for review in this court.
II. Jurisdiction and Standard of Review
Under 8 U.S.C. § 1252(a)(2)(C), this court lacks
jurisdiction to review a final order of removal against an alien
who is removable based on his conviction for an aggravated
felony. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885
(9th Cir. 2003). However, we retain jurisdiction to determine
whether a particular offense constitutes an aggravated felony,
id., and we review that question de novo. See, e.g., Cazarez-
Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004).
III. Discussion
Barragan-Lopez was convicted under California Penal
Code § 210.5, which then provided:
BARRAGAN -LOPEZ V . HOLDER 5
Every person who commits the offense of
false imprisonment, as defined in Section 236,
against a person for purposes of protection
from arrest, which substantially increases the
risk of harm to the victim, or for purposes of
using the person as a shield is punishable by
imprisonment in the state prison for three,
five, or eight years.
Section 236 defines “false imprisonment” as “the unlawful
violation of the personal liberty of another.” Cal. Penal Code
§ 236. The sole issue before this court is whether Barragan-
Lopez’s conviction is a crime of violence, thus making him
removable as an aggravated felon.
The Immigration and Nationality Act (“INA”) provides
that an alien who has been convicted of an aggravated felony
is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). Section
101(a)(43) of the INA defines “aggravated felony” to include
“a crime of violence (as defined in section 16 of Title 18, but
not including a purely political offense) for which the term of
imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F). Section 16 of Title 18 in turn defines the
term “crime of violence” as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of
another, or
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk that
physical force against the person or property
6 BARRAGAN -LOPEZ V . HOLDER
of another may be used in the course of
committing the offense.
18 U.S.C. § 16. Only the applicability of § 16(b) is at issue
before us. We do not address Barragan-Lopez’s arguments
based on 18 U.S.C. § 16(a). The BIA’s denial of relief was
based on its conclusion that § 210.5 was categorically a crime
of violence under § 16(b), and we “cannot affirm the BIA or
IJ on a ground upon which it did not rely.” Ali v. Holder,
637 F.3d 1025, 1029 (9th Cir. 2011).
We apply the categorical approach of Taylor v. United
States, 495 U.S. 575 (1990), to determine whether Barragan-
Lopez’s conviction under § 210.5 by its nature involves a
substantial risk of force under § 16(b), and thus constitutes an
aggravated felony. See Suazo Perez v. Mukasey, 512 F.3d
1222, 1225 (9th Cir. 2008). To make this determination, “we
inquire whether ‘the conduct encompassed by the elements of
the offense, in the ordinary case, presents’ such a risk.”
Delgado-Hernandez v. Holder, 697 F.3d 1125, 1128 (9th Cir.
2012) (quoting James v. United States, 550 U.S. 192, 208
(2007)). Under the categorical approach, “an offense
qualifies as an aggravated felony ‘if and only if the full range
of conduct covered by the criminal statute falls within the
meaning of that term.’” Penuliar v. Mukasey, 528 F.3d 603,
608 (9th Cir. 2008) (alteration omitted) (quoting Chang v.
INS, 307 F.3d 1185, 1189 (9th Cir. 2002)).
Crimes of violence under § 16(b) are “offenses that
naturally involve a person acting in disregard of the risk that
physical force might be used against another in committing
an offense.” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). In
Leocal, the Supreme Court explained that “[t]he reckless
disregard in § 16 relates not to the general conduct or to the
BARRAGAN -LOPEZ V . HOLDER 7
possibility that harm will result from a person’s conduct, but
to the risk that the use of physical force against another might
be required in committing a crime.” Id. According to the
Court, the “classic example” of a crime covered by § 16(b) is
burglary because “burglary, by its nature, involves a
substantial risk that the burglar will use force against a victim
in completing the crime.” Id.
We have previously held that the crimes of resisting arrest
and kidnapping are categorical crimes of violence. In
Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007),
we held that “resisting arrest naturally involves the risk that
physical force may be used against an officer.” Id. at 521.
The Arizona statute at issue included both the use of physical
force and “[u]sing any other means creating a substantial risk
of causing physical injury to the peace officer or another.”
See Ariz. Rev. Stat. § 13-2508(A)(2). We held that the
offense was a crime of violence even though it could be
committed by “other means” than physical force. “When
persons undertake resisting arrest under § 13-2508(A)(2),
they take the chance that the incident will escalate and that
‘the use of physical force against another might be required
in committing [the] crime.’” 512 F.3d at 521 (alteration in
original) (quoting Leocal, 543 U.S. at 10). Further, because
the violation of the Arizona statute required an intentional
act, it satisfied the mens rea requirement of Leocal. Id.
We held in Delgado-Hernandez v. Holder that the crime
of kidnapping under California Penal Code § 207(a) is
categorically a crime of violence. Under § 207(a),
kidnapping can be committed “forcibly, or by any other
means of instilling fear.” Cal. Penal Code § 207(a). We held
that “an ordinary kidnapping under § 207(a) is a crime of
violence because it results in a substantial risk of force.”
8 BARRAGAN -LOPEZ V . HOLDER
Delgado-Hernandez, 697 F.3d at 1133. Kidnapping carries
with it “the ever-present possibility that the victim may . . .
decide to resist, in turn requiring the perpetrator to resort to
actual physical restraint if he is to carry out the criminal
plan.” Id. at 1131 (quoting United States v. Kaplansky,
42 F.3d 320, 324 (6th Cir. 1994)). Thus, while one might
“imagine . . . a kidnapping under § 207[] with minimal risk of
force,” we concluded “that the ordinary case of kidnapping
involves a risk of violence.” Id. at 1129.
False imprisonment under § 210.5 is similar to both
evading arrest and kidnapping in that “by its nature” it carries
“a substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.” 18 U.S.C. § 16(b); see Delgado-Hernandez,
697 F.3d at 1133; Estrada-Rodriguez, 512 F.3d at 521.
Section 210.5 imposes an enhanced punishment of
imprisonment of three, five, or eight years if false
imprisonment is committed either (1) for “protection from
arrest, which substantially increases the risk of harm to the
victim” or (2) “for purposes of using the person as a shield.”
Cal. Penal Code § 210.5. In the ordinary case where this
section applies, the perpetrator uses a hostage to protect
himself from arrest or from harm. In such a situation, the
perpetrator may use physical force to retain control over the
hostage or to discourage the police or other parties from
intervening. There is also a possibility that the police or other
parties may take actions that result in physical force being
applied to the hostage or another person. We therefore
conclude that the crime of false imprisonment under § 210.5
for purposes of protection from arrest or use as a shield “by
its nature[] involves a substantial risk that physical force . . .
may be used in the course of committing the offense.”
18 U.S.C. § 16(b).
BARRAGAN -LOPEZ V . HOLDER 9
It is irrelevant that § 210.5 does not include as an element
of the offense a “substantial risk that physical force against
the person or property of another may be used.” 18 U.S.C.
§ 16(b). Even if the perpetrator does not directly use force or
violence against the hostage in committing the false
imprisonment, he certainly “take[s] the chance that the
incident will escalate and that ‘the use of physical force
against another might be required in committing [the]
crime.’” Estrada-Rodriguez, 512 F.3d at 521 (alteration in
original) (quoting Leocal, 543 U.S. at 10). Further, a person
unlawfully violating “the personal liberty of another,” Cal.
Penal Code § 236, “for purposes of protection from arrest” or
“using the person as a shield,” id. § 210.5, performs an
intentional act that satisfies the mens rea requirement of
Leocal. See Estrada-Rodriguez, 512 F.3d at 521. This is all
that the statute requires.
Our conclusion is not at odds with United States v.
Gonzalez-Perez, 472 F.3d 1158 (9th Cir. 2007), which held
that a false imprisonment conviction under Florida law was
not a crime of violence under § 2L1.2(b)(1)(A)(ii) of the
United States Sentencing Guidelines. See id. at 1159. The
Application Note to that section of the guidelines defines
“crime of violence” as including specified crimes, as well as
“any other offense under federal, state, or local law that has
as an element the use, attempted use, or threatened use of
physical force against the person of another.” § 2L1.2, cmt.
n.1(B)(iii). This language is substantially the same as the
language in § 16(a), which defines crime of violence to mean
“an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” But the Application Note to
§ 2L1.2(b)(1)(A)(ii) does not include the language in § 16(b),
which defines a crime of violence as also including an offense
10 BARRAGAN -LOPEZ V . HOLDER
that, “by its nature, involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense.” As explained
above, a crime committed in violation of California Penal
Code § 210.5 meets this § 16(b) requirement because it
involves a substantial risk that force may be used. Therefore,
it constitutes a “crime of violence” under § 16(b) even if it
does not include an element of force as is required by § 16(a)
and § 2L1.2(b)(1)(A)(ii). Because Gonzalez-Perez did not
address the “substantial risk” issue, its holding that false
imprisonment under Florida law was not a crime of violence
for purposes of § 2L1.2 is not applicable here.
IV. Conclusion
We conclude that a violation of California Penal Code
§ 210.5 is categorically a crime of violence under 18 U.S.C.
§ 16(b), and is thus an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). We otherwise lack jurisdiction to
review Barragan-Lopez’s final order of removal.
Petition for review DENIED in part and DISMISSED
in part.