Roberto Solorio-Ruiz v. Jefferson Sessions , 881 F.3d 733 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO SOLORIO-RUIZ, AKA No. 16-73085
Alejandro Cervantes-Calderon, AKA
Manuel Ortiz Espinosa, AKA Mark Agency No.
Anthony Lopez, AKA Robert A034-223-887
Salazar,
Petitioner,
OPINION
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2017
San Francisco, California
Filed January 29, 2018
Before: Susan P. Graber and N. Randy Smith, Circuit
Judges, and Jennifer G. Zipps,* District Judge.
Opinion by Judge Graber
*
The Honorable Jennifer G. Zipps, United States District Judge for
the District of Arizona, sitting by designation.
2 SOLORIO-RUIZ V. SESSIONS
SUMMARY**
Immigration
The panel granted Roberto Solorio-Ruiz’s petition for
review of the Board of Immigration Appeals’ decision,
holding that his conviction for carjacking under California
Penal Code § 215(a) is not a crime of violence aggravated
felony under 8 U.S.C. § 1101(a)(43)(F) that made him
ineligible for relief from removal, and remanded for the
agency to determine whether the conviction is a theft offense
aggravated felony under 8 U.S.C. § 1101(a)(43)(G).
The panel held that Nieves-Medrano v. Holder, 590 F.3d
1057 (9th Cir. 2010), which squarely held that a conviction
for carjacking under California Penal Code § 215 is
categorically a crime of violence under 8 U.S.C.
§ 1101(a)(43)(F), cannot stand in light of Johnson v. United
States, 559 U.S. 133, 140 (2010), which held that the physical
force that a crime of violence entails must be “violent
force—that is, force capable of causing physical pain or
injury to another person.” Examining California case law, the
panel concluded that, because the California carjacking
statute does not require the violent force that Johnson
demands, the statute is not a crime of violence.
Because the Board did not consider the immigration
judge’s alternate holding that Solorio-Ruiz’s carjacking
conviction qualifies as a theft offense aggravated felony
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SOLORIO-RUIZ V. SESSIONS 3
under 8 U.S.C. § 1101(a)(43)(G), the panel remanded for the
Board to consider that issue in the first instance.
COUNSEL
Jayashri Srikantiah (argued), Supervising Attorney; Brittany
Benjamin (argued) and Adam Hersh (argued), Certified Law
Students; Immigrants’ Rights Clinic, Mills Legal Clinic,
Stanford Law School, Stanford, California; for Petitioner.
Melissa K. Lott (argued), Trial Attorney; Melissa Neiman-
Kelting, Assistant Director; Chad A. Readler, Acting
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Roberto Solorio-Ruiz, a native and citizen of
Mexico, petitions for review of a final order of removal.
Petitioner stands convicted of carjacking in violation of
California Penal Code § 215(a). An immigration judge (“IJ”)
ruled that Petitioner’s crime of conviction is an aggravated
felony, making him ineligible for relief from removal,
because (1) the carjacking offense is a crime of violence, and
(2) the carjacking offense is a theft offense. The Board of
Immigration Appeals (“BIA”) affirmed on the first ground
and did not reach the second. We review de novo whether a
particular conviction under state law counts as a removable
offense. Arrellano Hernandez v. Lynch, 831 F.3d 1127, 1130
4 SOLORIO-RUIZ V. SESSIONS
(9th Cir. 2016), cert. denied, 137 S. Ct. 2180 (2017). For the
reasons that follow, we hold that a California conviction
under section 215(a) does not qualify as a crime of violence.
We grant the petition to that extent and remand the case to the
BIA to decide, in the first instance, whether Petitioner’s
offense qualifies as a theft offense.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, a California jury convicted Petitioner of
carjacking in violation of California Penal Code § 215(a), and
evading a police officer in violation of California Vehicle
Code § 2800.2. Petitioner was sentenced to 10 years’
imprisonment on the carjacking charge and to one year and
four months on the evading charge, plus enhancements that
made the total sentence of confinement 21 years and four
months. Thereafter, the government sought to remove
Petitioner on the ground that the carjacking conviction is an
“aggravated felony” within the meaning of 8 U.S.C.
§ 1227(a)(2)(A)(iii). The government advanced two theories:
that Petitioner committed a “crime of violence,” 8 U.S.C.
§ 1101(a)(43)(F), and that he committed a “theft offense,” id.§ 1101(a)(43)(G).
After a series of proceedings concerning Petitioner’s
representation and citizenship status, the details of which are
not relevant to the issues before us, the IJ ruled that Petitioner
is removable. But the IJ continued the hearing to allow
Petitioner to file an application for relief from removal.
Petitioner submitted an application for relief under former
8 U.S.C. § 1182(c) (“§ 212(c) waiver”), which was available
to lawful permanent residents who had been lawfully
domiciled in the United States for seven consecutive years.
See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (holding that a
SOLORIO-RUIZ V. SESSIONS 5
§ 212(c) waiver remains available in certain circumstances);
In re Abdelghany, 26 I. & N. Dec. 254 (B.I.A. 2014)
(discussing eligibility for a § 212(c) waiver).
The government then moved to pretermit the application,
arguing that Petitioner was ineligible for a § 212(c) waiver.
A § 212(c) waiver is not available if the applicant served an
aggregate of more than five years of imprisonment for an
aggravated felony. Petitioner concededly served a sentence
of more than five years for the carjacking offense, but he
disputed the government’s contention that carjacking
qualifies as an aggravated felony. The IJ granted the
government’s motion on the ground that the carjacking statute
qualified as a crime of violence and as a theft offense.
Petitioner timely appealed to the BIA. He challenged
both categorizations of his conviction. The BIA held that the
carjacking offense is a crime of violence and dismissed the
appeal on that ground. The BIA did not reach the question
whether the crime of conviction qualifies as a theft offense.
Petitioner timely sought review in this court.
DISCUSSION
A. Crime of Violence
We must begin with Nieves-Medrano v. Holder, 590 F.3d
1057, 1058 (9th Cir. 2010) (order), which squarely held that
“a conviction for carjacking under California Penal Code
§ 215 is categorically a ‘crime of violence’ under 8 U.S.C.
§ 1101(a)(43)(F).” If Nieves-Medrano remains good law, that
is both the beginning and the end of the case.
6 SOLORIO-RUIZ V. SESSIONS
But we are bound by “intervening higher authority”; if a
later, controlling authority is “clearly irreconcilable” with our
earlier precedent, we “should reject the prior circuit opinion
as having been effectively overruled.” Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc). In 2010, the
United States Supreme Court issued Johnson v United States,
559 U.S. 133, 140 (2010), which held that the physical force
that a crime of violence entails1 must be “violent force—that
is, force capable of causing physical pain or injury to another
person.” Johnson altered our understanding of how violent a
crime must be to qualify as a crime of violence. See United
States v. Geozos, 870 F.3d 890, 901 (9th Cir. 2017) (holding,
directly contrary to a pre-Johnson memorandum disposition
in the same case, that a robbery conviction under section
812.13(1) of the Florida Statutes did not, under Johnson,
categorically qualify as a violent felony).
Nieves-Medrano cannot stand in light of Johnson. In
Nieves-Medrano, we said nothing about the level of violence
required to violate California Penal Code § 215(a). Instead,
we rested our decision entirely on United States v. Becerril-
Lopez, 541 F.3d 881, 893 (9th Cir. 2008), in which we held
that robbery under section 211 was categorically a crime of
violence under the Sentencing Guidelines. Nieves-Medrano,
590 F.3d at 1057–58. Becerril-Lopez, too, lacks an analysis
of the level of violence required to commit California
1
Title 8 U.S.C. § 1101(a)(43)(F) incorporates the “crime of violence”
definition in 18 U.S.C. § 16(a), which defines a “crime of violence” as “an
offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.”
SOLORIO-RUIZ V. SESSIONS 7
robbery.2 Thus, neither Nieves-Medrano nor the sole case on
which it relied demonstrates that we considered, at all,
whether section 215(a) requires the use of violent force.
Johnson—and the violence requirement that it announced—
thus fatally undermined our decision in Nieves-Medrano, and
we must consider anew whether California carjacking, after
Johnson, qualifies as a crime of violence. See United States
v. Molinar, 876 F.3d 953, 958 (9th Cir. 2017) (holding that
Johnson “effectively overruled” our decision in United States
v. Taylor, 529 F.3d 1232 (9th Cir. 2008), by changing the
crime-of-violence analysis); United States v. Flores-Cordero,
723 F.3d 1085, 1088 (9th Cir. 2013) (“We must now [after
Johnson] conclude that conviction of ‘resisting arrest’ under
Arizona law is not categorically a crime of violence within
the meaning of federal law, and that our decision in Estrada-
Rodriguez[ v. Mukasey, 512 F.3d 517 (9th Cir. 2007)], to the
extent it suggests otherwise, has been superseded by
controlling, intervening authority.”).
To decide whether California carjacking constitutes a
crime of violence after Johnson, we employ the categorical
approach. That is, we consider whether every violation of the
statute necessarily involves violent force. Moncrieffe v.
Holder, 569 U.S. 184, 190–91 (2013). In that inquiry, we
look at “both the text of the state statute and the state courts’
interpretations of the statute’s terms,” and we treat state cases
examining “the outer contours of the conduct criminalized by
2
We do not opine today on whether Becerril-Lopez remains
controlling law after Johnson. Our post-Johnson decision in United States
v. Flores-Mejia, 687 F.3d 1213, 1214 (9th Cir. 2012), suggests that it
might. What matters here, though, is only that Becerril-Lopez did not
explore expressly what level of violence the California robbery law
requires.
8 SOLORIO-RUIZ V. SESSIONS
the state statute” as “particularly important.” United States v.
Strickland, 860 F.3d 1224, 1226–27 (9th Cir. 2017) (internal
quotation marks omitted).
Recently, in People v. Hudson, 217 Cal. Rptr. 3d 775, 782
(Ct. App. 2017), the California Court of Appeal clarified the
level of “force or fear” required to sustain a state conviction
for carjacking. The court explained that California carjacking
“requires only force in excess of that required to seize the
vehicle,” however slight that may be. Id. Beyond that, the
amount of force used is irrelevant. People v. Lopez, 214 Cal.
Rptr. 3d 618, 622 (Ct. App. 2017). California’s carjacking
statute thus does not require the violent force that Johnson
demands of a crime of violence.
Hudson’s facts are illustrative. There, the defendant took
a car from a car dealership. Hudson, 217 Cal. Rptr. 3d at 776.
As the defendant began to drive the car away, an employee
tried to stop him by banging on the trunk, opening the
driver’s door, and trying to grab the defendant. Id. at 776–77.
There was no evidence that the defendant drove the car
forcefully or fast. Id. at 777. But the movement of the car at
about 5 to 10 miles per hour, while the dealership employee
was attempting to stop the defendant, was sufficient “force”
to support a conviction. Id. That was so because, in
California, “the application of force inherent [in driving a
vehicle away]” is enough to sustain a carjacking conviction,
whenever the victim puts up the slightest resistance. Id. at
782; see also People v. Magallanes, 92 Cal. Rptr. 3d 751, 755
(Ct. App. 2009) (“Defendant’s action of attempting to drive
away . . . was sufficient.”). It thus cannot be said that
California carjacking requires the use of violent force. As
Hudson shows, one can satisfy section 215(a)’s force
requirement by driving a car at a slow speed—i.e., at a non-
SOLORIO-RUIZ V. SESSIONS 9
violent speed—and without harming a person or property.
Because California carjacking does not require the violent
force that Johnson demands, California carjacking is not a
crime of violence under 8 U.S.C. § 1101(a)(43)(F).
Our recent holding in United States v. Gutierrez, 876 F.3d
1254 (9th Cir. 2017) (per curiam), is not to the contrary.
There, we held that the federal offense of carjacking is a
crime of violence under 18 U.S.C. § 924(c). Id. at 1257. But
the federal definition of carjacking is quite different from
California’s definition:
Whoever, with the intent to cause death or
serious bodily harm[,] takes a motor vehicle
. . . from the person or presence of another by
force and violence or by intimidation, or
attempts to do so, shall [be punished
according to law].
18 U.S.C. § 2119.
As we observed in Gutierrez, carjacking “committed ‘by
force and violence’ . . . obviously qualifies as a crime of
violence under the Johnson standard.” 876 F.3d at 1256
(emphasis added). But a person need not use force and
violence to commit California carjacking. Rather, a person
need use only more force than that required to seize the
vehicle. Hudson, 217 Cal. Rptr. 3d at 782. And, for the
reasons explained above, that quantum of force does not
always involve the element of violence that Johnson requires.
Similarly, our decision in United States v. Ayala-Nicanor,
659 F.3d 744 (9th Cir. 2011), does not require a different
result here. There, we held that Johnson did not undermine
10 SOLORIO-RUIZ V. SESSIONS
our decision in United States v. Laurico-Yeno, 590 F.3d 818(9th Cir. 2010), which held that a California statute
criminalizing the infliction of corporal injury on certain
relatives was a “crime of violence” under U.S.S.G. § 2L1.2.
But in Laurico-Yeno, unlike in Nieves-Medrano, the opinion
extensively considered the degree of violence required to
commit the crime, concluding that the statute at issue
required intentional, active violence sufficient to inflict
trauma on another person. Laurico-Yeno, 590 F.3d at 821.
Thus, Johnson did not “effectively overrule” Laurico-Yeno
because, in Laurico-Yeno, we already had conducted the
violence analysis that Johnson would later require. Here,
both the statute at issue and our pre-Johnson analysis of it
differ significantly from the statute at issue in Laurico-Yeno
and our pre-Johnson analysis of it.3
B. Theft Offense
In reviewing a petition, we “consider only the grounds
relied upon by the BIA.” Singh v. Holder, 649 F.3d 1161,
1164 n.6 (9th Cir. 2011) (en banc) (internal quotation marks
omitted). When the BIA’s decision “cannot be sustained
upon its reasoning, we must remand to allow the agency to
3
Ayala-Nicanor’s additional suggestion that Johnson should not
apply to the term “violence” in 18 U.S.C. § 16, Ayala-Nicanor, 659 F.3d
at 751 n.3, is in tension with our later decision in Rodriguez-Castellon v.
Holder, 733 F.3d 847, 854 (9th Cir. 2013), where we held clearly that
Johnson’s definition of violence applies in the 18 U.S.C. § 16 context.
Because the issue of Johnson’s applicability to § 16 was not “presented
for review” in Ayala-Nicanor—a case that concerned only the term “crime
of violence” as used in the Sentencing Guidelines—we consider its
treatment of 18 U.S.C. § 16 non-binding dictum. Barapind v. Enomoto,
400 F.3d 744, 751 (9th Cir. 2005) (en banc) (per curiam).
SOLORIO-RUIZ V. SESSIONS 11
decide any issues remaining in the case.” Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).
Here, because the BIA disposed of Petitioner’s appeal on
the theory that California carjacking is a crime of violence, it
did not consider the IJ’s alternate holding that California
carjacking qualifies as a theft offense. We therefore remand
the case to the BIA for it to consider in the first instance
whether Petitioner’s carjacking conviction qualifies as a theft
offense under 8 U.S.C. § 1101(a)(43)(G).
CONCLUSION
California carjacking is not a crime of violence under
8 U.S.C. § 1101(a)(43)(F), and our holding to the contrary
in Nieves-Medrano is no longer good law after Johnson. The
question remains, though, whether California carjacking is a
theft offense under 8 U.S.C. § 1101(a)(43)(G), and we
remand the case for the BIA to consider that issue.
Petition GRANTED; REMANDED.