Jose Gomez-Fernandez v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CARMEN GOMEZ FERNANDEZ, No. 19-70079
AKA Jobe Carmen Gomez, AKA
Jose Carmen Gomez, AKA Jose Agency No.
Gomez Carmen, A070-640-213
Petitioner,
v. OPINION
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 11, 2020
San Francisco, California
Filed August 13, 2020
Before: MILAN D. SMITH, JR. and ANDREW D.
HURWITZ, Circuit Judges, and DAVID A. EZRA, *
District Judge.
Opinion by Judge Milan D. Smith Jr.
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 GOMEZ FERNANDEZ V. BARR
SUMMARY **
Immigration
Denying Jose Gomez Fernandez’s petition for review of
a decision of the Board of Immigration Appeals, the panel
held that: 1) a murder conviction under California Penal
Code § 187(a) is broader than the generic definition of
murder in the aggravated felony provision of the
Immigration and Nationality Act because the California
statute includes the killing of a fetus; 2) § 187(a) is
nonetheless divisible; 3) under the modified categorical
approach, Gomez’s § 187(a) conviction is an aggravated
felony; and 4) substantial evidence supported the denial of
deferral of removal under the Convention Against Torture
(CAT).
Gomez, a native and citizen of Mexico, became a lawful
permanent resident, but was later ordered removed on the
ground that his conviction for second degree murder in
violation of § 187(a) is an aggravated felony.
Employing the categorical approach, the panel first
compared § 187(a) to the generic offense of “murder” used
in the relevant aggravated felony provision, 8 U.S.C.
§ 1101(a)(43)(A). Although Congress did not define
“murder” in that provision, the panel noted that the parties
agreed that the foundation for ascertaining the federal
generic definition was the federal murder statute, 18 U.S.C.
§ 1111, which provides in relevant part that murder is the
“unlawful killing of a human being with malice
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GOMEZ FERNANDEZ V. BARR 3
aforethought.” Further, the panel explained that Congress
has defined the term “human being,” in 1 U.S.C. § 8(a), for
purposes of determining the meaning of any Act of
Congress, to “include every infant member of the species
homo sapiens who is born alive at any stage of
development.” Looking, in turn, to the definition of “born
alive” in 1 U.S.C. § 8(b), the panel concluded that the term
“human being” does not include a fetus. Thus, the panel held
that the federal generic definition of murder excludes the
killing of an unborn fetus.
The panel rejected the Government’s reliance on
18 U.S.C. § 1841, the federal unborn child protection
statute, to reason that the federal generic definition of murder
includes the killing of an unborn fetus. Considering
§ 1841’s plain language, purpose, and structure, the panel
agreed with the Eighth Circuit that § 1841 has no
applicability or reach beyond its own provisions.
Comparing § 187(a) to the federal generic definition, the
panel concluded that § 187(a) is broader because it includes
the killing of an unborn fetus. However, the panel concluded
that § 187(a) is divisible because it creates distinct crimes for
the unlawful killing of a human being and the unlawful
killing of a fetus. In so concluding, the panel examined the
text of the statute, the Shepard documents in this case, state
court decisions, and the California model jury instructions.
Applying the modified categorical approach, the panel
concluded that Gomez’s conviction met the federal generic
definition of murder. The panel explained that the judgment
against Gomez convicting him of “Count 1A” for the
violation of § 187(a) clearly was linked with Count One of
the indictment, which charged him with unlawfully killing
“a human being” in violation of § 187(a). Accordingly, the
4 GOMEZ FERNANDEZ V. BARR
panel concluded that Gomez’s conviction is an aggravated
felony that rendered him removable.
The panel also concluded that substantial evidence
supported the BIA’s decision affirming the denial of CAT
deferral. The panel explained that Gomez presented no
evidence of past torture and that he relied primarily on
evidence of harm to his family members in 1996, but also
testified that 1997 was the last time he had heard that the
group that threatened his family was looking for his sister.
Noting that Gomez indicated his brother had gone into
hiding, the panel observed that he had also explained that his
brother continued to live in Mexico unharmed. The panel
further concluded that Gomez’s speculation that the people
who targeted his family in 1996 would target him now was
insufficient to meet his burden.
COUNSEL
Robert G. Berke (argued), Berke Law Offices Inc., Canoga
Park, California, for Petitioner.
Bernard A. Joseph (argued), Senior Litigation Counsel;
Derek C. Julius, Assistant Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
GOMEZ FERNANDEZ V. BARR 5
OPINION
M. SMITH, Circuit Judge:
Shortly after Jose Gomez Fernandez, a native and citizen
of Mexico, became a lawful permanent resident, a jury
convicted him of second degree murder in violation of
California Penal Code § 187(a). The Department of
Homeland Security (DHS) charged Gomez with being
removable from the United States pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated
felony, as defined in 8 U.S.C. § 1101(a)(43)(A). An
immigration judge (IJ) and the Board of Immigration
Appeals (BIA) agreed and denied Gomez’s request for
deferral of removal pursuant to the Convention Against
Torture (CAT). Gomez petitions for our review.
California law defines “murder” as “the unlawful killing
of a human being, or a fetus, with malice aforethought.” Cal.
Penal Code § 187(a) (emphasis added). 1 The principal issue
that the petition raises is whether a § 187(a) conviction is
broader than the federal generic definition of murder in the
aggravated felony provision of the Immigration and
Nationality Act (INA) because it includes the killing of a
fetus, and, if so, whether § 187(a) is divisible. We are aware
of the sensitive nature that this issue raises. Our limited role,
however, is to apply the Supreme Court’s method for
determining whether an offense qualifies as an aggravated
felony under the INA.
1
Second degree murder is “all other kinds of murders” other than
those identified in California Penal Code § 189(a). Cal. Penal Code
§ 189(b). Because this provision is not otherwise relevant to the
analysis, we do not discuss it further.
6 GOMEZ FERNANDEZ V. BARR
Doing so here, we hold that the federal generic definition
of murder is “the unlawful killing of a human being with
malice aforethought.” 18 U.S.C. § 1111(a). Because federal
law defines the term “human being” to exclude an unborn
fetus, 1 U.S.C. § 8, California Penal Code § 187(a), which
criminalizes the unlawful killing of an unborn fetus, is
broader than the federal generic definition. However, we
also hold that § 187(a) is divisible because it creates distinct
crimes for the unlawful killing of a human being and the
unlawful killing of a fetus. Gomez’s § 187 conviction for
the unlawful killing of a human being renders him
removable as charged. Finally, we conclude that substantial
evidence supports the denial of CAT deferral. Thus, we
deny the petition.
BACKGROUND
Gomez became a lawful permanent resident in 2000.
Three years later, a jury convicted him of second degree
murder in violation of § 187(a), and he was sentenced to
fifteen years to life in prison with the possibility of parole.
In December 2017, DHS charged Gomez as removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien
convicted of an aggravated felony, as defined in 8 U.S.C.
§ 1101(a)(43)(A). Gomez averred that he was not
removable as charged because (1) § 187(a), by criminalizing
the killing of a fetus, is broader than the federal generic
definition of murder under the INA and (2) § 187(a) is
indivisible. 2 Gomez also sought withholding of removal and
CAT relief, claiming a fear of returning to Mexico.
2
Before the IJ, Gomez contested that he had a § 187(a) conviction
and the duration of his sentence. He disavows those arguments here.
GOMEZ FERNANDEZ V. BARR 7
The IJ concluded that Gomez was removable as charged.
First, he concluded that Gomez had failed to show that
§ 187(a) is broader than the federal generic definition of
murder. The IJ recognized that in Matter of M–W–, 25 I. &
N. Dec. 748, 752, 758 (B.I.A. 2002), the BIA had construed
the INA’s generic definition of murder to mean the killing of
a human being with malice aforethought. But the IJ
reasoned that the federal generic definition “implicitly
includes murder of ‘a fetus.’” The IJ observed that 18 U.S.C.
§ 1841—a federal statute that criminalizes certain conduct
that causes the death of or great bodily injury to an unborn
child—imposes the same punishments that apply to the
federal murder statute, 18 U.S.C. § 1111, when the offense
involves the intentional killing of or intentional attempt to
kill a fetus. 18 U.SC. § 1841(a)(2)(C). The IJ further
reasoned that “[a] significant majority of states also protect
fetal life in murder statutes[.]”
Alternatively, the IJ assumed that § 187(a)’s inclusion of
the killing of a fetus rendered it overbroad. The IJ concluded
that § 187(a) is divisible because it creates different crimes
for the killing of a human being and of a fetus. The IJ then
determined that Gomez’s conviction satisfies the federal
generic definition because he was charged with killing a
“human being.” The IJ concluded that Gomez was ineligible
for asylum and withholding of removal for being convicted
of a particularly serious crime. The IJ denied CAT deferral
because Gomez had not shown that he would be tortured in
Mexico.
The BIA adopted and affirmed the IJ’s decision. Gomez
timely petitioned for our review.
8 GOMEZ FERNANDEZ V. BARR
JURISDICTION AND STANDARD OF REVIEW
When an alien is found removable for having a
conviction that is an aggravated felony under the INA, our
jurisdiction is limited to review of constitutional questions
and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).
Whether a crime is as an aggravated felony under the INA is
a question of law subject to de novo review. Jauregui-
Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020).
ANALYSIS
I. Gomez’s § 187(a) Conviction Is as an Aggravated
Felony under the INA
We must decide first whether a § 187(a) offense falls
within the generic offense of “murder” as used in the INA’s
aggravated felony provision, 8 U.S.C. § 1101(a)(43)(A),
thus rendering Gomez removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). Although we have previously
considered whether a California second degree murder
conviction pursuant to an aider and abettor theory is an
aggravated felony under the INA, there was no dispute that
a California conviction for second degree murder is an
aggravated felony under federal law. Sales v. Session,
868 F.3d 779, 780 (9th Cir. 2017). Gomez, however, raises
that dispute. He contends that a § 187 conviction is not an
aggravated felony under the INA because it includes the
killing of a fetus. Neither we, nor any of our sister circuits
has addressed in a precedential decision whether the federal
generic definition of murder in the INA’s aggravated felony
provision includes the killing of a fetus. 3 The sensitive
3
Our court has considered this issue in an unpublished disposition.
Bent v. Barr, 775 F. App’x 281 (9th Cir. 2019). The petition concerned
GOMEZ FERNANDEZ V. BARR 9
nature of this issue may explain the dearth of any precedent
on it. In addressing the issue here, we first describe the
framework that guides our analysis.
A. The Framework
We use the categorical and modified categorical
approaches set forth in Taylor v. United States, 495 U.S. 575(1990), and Shepard v. United States, 544 U.S. 13 (2005) to
determine whether a state conviction is an aggravated felony
under the INA. Lopez-Aguilar v. Barr, 948 F.3d 1143, 1146
(9th Cir. 2020).
Pursuant to the categorical approach, we “compare the
elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the
offense as commonly understood.” Descamps v. United
States, 570 U.S. 254, 257 (2013). A state offense with the
same or narrower elements as the generic offense defined by
federal law is a categorical match. Lopez-Valencia v. Lynch,
798 F.3d 863, 867 (9th Cir. 2015). However, “[a] state
statute is overbroad if there is a realistic probability of its
application to conduct that falls beyond the scope of the
generic federal offense.” Jauregui-Cardenas, 946 F.3d
at 1119 (citation and internal quotation marks omitted).
whether attempted murder under California law is broader than the
generic definition of attempted murder in § 1101(a)(43)(A). We
remanded so that the BIA could consider in the first instance “whether
generic INA murder encompasses feticide” and thus “whether ‘murder’
as used in that provision categorically includes the unlawful killing of a
fetus as prohibited by California.” Id. at 283. On remand, the BIA
determined that § 187(a) is broader than generic murder under the INA.
See Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1677332, at *1
(N.D. Cal. Apr. 6, 2020).
10 GOMEZ FERNANDEZ V. BARR
If the statute of conviction is overbroad, we determine
whether the statute is divisible. Medina-Lara v. Holder,
771 F.3d 1106, 1112 (9th Cir. 2014). A statute is divisible
if it has “multiple, alternative elements, and so effectively
creates several different crimes.” Almanza-Arenas v. Lynch,
815 F.3d 469, 476 (9th Cir. 2016) (en banc) (citation and
internal quotation marks omitted). If an offense has an
indivisible set of elements with different means of
committing one crime, it is indivisible, and our inquiry ends.
Id.If the statute is divisible, we apply the modified
categorical approach and “examine judicially noticeable
documents of conviction ‘to determine which statutory
phrase was the basis for the conviction.’” United States v.
Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en
banc) (quoting Descamps, 570 U.S. at 268). These
documents include “‘the charging document, the terms of a
plea agreement,’ the ‘transcript of [the plea] colloquy,’ and
‘comparable judicial record[s],’” such as the judgment.
Marinelarena v. Barr, 930 F.3d 1039, 1045–46 (9th Cir.
2019) (en banc) (quoting Shepard, 544 U.S. at 26). If the
defendant’s conviction satisfies the federal definition in light
of such documents, it is an aggravated felony under the INA.
In accordance with this framework, we first ascertain the
federal generic definition of “murder” and then compare
§ 187(a) with that definition.
B. The Federal Generic Definition of “Murder”
Under the INA
When Congress added the aggravated felony provision
to the INA in 1988, “murder” was one of the few offenses
included in that provision. Anti-Drug Abuse Act (ADAA)
of 1988, Pub. L. 100-690, §§ 7342, 7344, 102 Stat. 4469,
GOMEZ FERNANDEZ V. BARR 11
4470; see also Ledezma-Galicia v. Holder, 636 F.3d 1059,
1063–64 & n.5 (9th Cir. 2010) (discussing the ADAA
amendments to the INA). Congress did not define the term
“murder.” 8 U.S.C. § 1101(a)(43)(A). The parties agree,
however, that the foundation for ascertaining the federal
generic definition of murder is the federal murder statute,
18 U.S.C. § 1111. 4
1. The Federal Murder Statute: 18 U.S.C. § 1111The federal murder statute, 18 U.S.C. § 1111, provides
in relevant part that “[m]urder is the unlawful killing of a
human being with malice aforethought.” 18 U.S.C.
§ 1111(a) (emphasis added). We may rely on a
congressionally supplied federal definition of an offense at
the time that Congress added the offense to the INA’s
aggravated felony provision to ascertain the federal generic
definition of the offense. See Rodriguez-Valencia v. Holder,
652 F.3d 1157, 1159 (9th Cir. 2011) (looking to federal
criminal offenses in existence at the time that Congress
added an offense to the INA’s aggravated felony provision).
The absence of a cross-reference to § 1111 in the INA’s
aggravated felony provision does not undercut its relevance.
See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1570
(2017) (looking to federal criminal offense that the INA did
not cross-reference as evidence of the federal generic
4
We may ascertain the generic meaning of an undefined offense in
the INA by surveying “the definitions in state and federal [criminal]
statutes, adopted by the Model Penal Code (‘MPC’), and endorsed by
scholarly commentary.” United States v. Garcia-Santa, 774 F.3d 528,
534 (9th Cir. 2014). The Government, however, has failed to raise and
has therefore waived any arguments concerning the MPC, state criminal
statutes, or scholarly commentary. Aguilar-Turcios v. Holder, 740 F.3d
1294, 1302 n.11 (9th Cir. 2012).
12 GOMEZ FERNANDEZ V. BARR
definition of the offense). We have previously explained
that the terms in § 1101(43)(A) “that refer to a broad
category of offenses, using a potentially ambiguous phrase,
reference other statutory provisions for clarification[,] [but]
those that refer to a specific crime which is already clearly
defined in criminal law have no need for a cross-reference.”
Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1155 (9th Cir.
2008) (en banc), overruled in part and abrogated on other
grounds as recognized by United States v. Rivera-
Constantino, 798 F.3d 900, 904 (9th Cir. 2015). “[M]urder”
“needs no cross-reference” because it “denotes a clearly
defined criminal offense.” Id. at 1156.
Reliance on § 1111 to ascertain the federal generic
definition of murder does not break new ground. The
Second Circuit has relied solely on § 1111 as the federal
generic definition of murder. Santana-Felix v. Barr,
924 F.3d 51, 56 (2d Cir. 2019) (concluding that “second-
degree murder is clearly an aggravated felony within the
federal definition” in § 1101(a)(43)(A) because “under
federal law, ‘[m]urder is the unlawful killing of a human
being with malice aforethought,’ 18 U.S.C. § 1111(a)”). The
Second Circuit, however, did not address the meaning of the
term “human being” in § 1111, a question that is critical to
Gomez’s petition.
Turning to that critical question, we need not guess about
the meaning of the term “human being” in § 1111 because
Congress has already defined it. “In determining the
meaning of any Act of Congress, . . . the word[] ‘human
being’ . . . shall include every infant member of the species
homo sapiens who is born alive at any stage of
development.” 1 U.S.C. § 8(a) (emphasis added). The
phrase “born alive” is defined, in relevant part, as “with
respect to a member of the species homo sapiens, . . . the
GOMEZ FERNANDEZ V. BARR 13
complete expulsion or extraction from [the] mother of that
member, at any stage of development, who after such
expulsion or extraction breathes or has a beating heart,
pulsation of the umbilical cord, or definite movement of
voluntary muscles, . . .” Id. § 8(b). The term “human being”
thus does not include a fetus. See United States v.
Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011)
(concluding that “[u]nder a literal reading of [1 U.S.C. § 8],
the term ‘person’ does not include fetuses”). Applying this
federal definition of the term “human being” readily leads to
the conclusion that the federal generic definition of murder,
as reflected in § 1111, excludes the killing of an unborn
fetus. 5
2. The Federal Unborn Child Protection Statute:
18 U.S.C. § 1841Although the IJ and the BIA both recognized that § 1111
is the federal statute defining murder, they relied on
18 U.S.C. § 1841, the federal unborn child protection
statute, to reason that the federal generic definition of murder
includes the killing of an unborn fetus. The Government
also relies on § 1841 to argue that the federal generic
definition of murder includes an unborn fetus. Considering
§ 1841’s plain language, purpose, and structure, see United
States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015), we agree
with the Eighth Circuit that § 1841 “has no applicability or
5
This understanding of § 1111 coincides with our decision in United
States v. Spencer, 839 F.2d 1341 (9th Cir. 1988), decided the same year
that Congress adopted the INA’s aggravated felony provision and prior
to the adoption of a federal definition of the term “human being.” We
held that a § 1111 murder offense reached death caused by prenatal
injuries only “if the baby is born alive.” Id. at 1344.
14 GOMEZ FERNANDEZ V. BARR
reach beyond its own provisions,” United States v. Flute,
929 F.3d 584, 589 (8th Cir. 2019).
Congress enacted § 1841 in 2004 as part of the Unborn
Victims of Violence Act. Montgomery, 635 F.3d at 1086.
As is relevant here, § 1841 provides that:
If the person engaging in the conduct thereby
intentionally kills or attempts to kill the
unborn child, that person shall instead of
being punished under subparagraph (A), be
punished as provided under sections 1111,
1112, and 1113 of this title for intentionally
killing or attempting to kill a human being.
18 U.S.C. § 1841(a)(2)(C). This provision plainly punishes
the killing of an unborn child the same as the killing of a
human being under § 1111.
By its terms, however, § 1841 defines a separate criminal
offense: “[w]hoever engages in conduct that violates any of
the provisions of law listed in subsection (b) and thereby
causes the death of, or bodily injury . . . to, a child, who is in
utero at the time the conduct takes place, is guilty of a
separate offense under this section.” 18 U.S.C. § 1841(a)(1)
(emphasis added). 6 In creating this separate offense,
Congress conspicuously did not use the term “murder,” as it
has in other criminal provisions and the INA’s aggravated
felony provision. See 18 U.S.C § 1116 (“[m]urder or
manslaughter of foreign officials, official guests, or
6
Congress placed limits on prosecution pursuant to § 1841(a). One
may not prosecute any person for conduct relating to a consented
abortion, any person for any medical treatment of the pregnant women
or her unborn child, or of any woman with respect to her unborn child.
18 U.S.C. § 1841(c)(1)–(3).
GOMEZ FERNANDEZ V. BARR 15
internationally protected persons”); id. § 1118 (“[m]urder by
a federal prisoner”); id. § 1119 (“[foreign murder of United
States nationals”); id. § 1120 (“[m]urder by escaped
prisoners”); see also 8 U.S.C. § 1101(a)(43)(A). Section
1841 therefore does not transform the offense of killing an
unborn child into a violation of the federal murder statute.
C. Comparison of § 187(a) with the Federal Generic
Definition
It is readily apparent that § 187(a) is broader than the
federal generic definition of murder under the INA. Section
187(a) provides that “[m]urder is the unlawful killing of a
human being, or a fetus, with malice aforethought.” Cal.
Penal Code § 187(a). “Under the Penal Code, as was true
under common law, a fetus is not a ‘human being’ within
section 187’s definition of murder as ‘the unlawful killing of
a human being[.]” People v. Dennis, 950 P.2d 1035, 1055
(Cal. 1998). Instead, the term “fetus” means an “unborn
offspring” that has “progressed beyond the embryonic stage
of seven to eight weeks.” 7 People v. Davis, 872 P.2d 591,
599–600, 602 (Cal. 1994) (emphasis added). Because
§ 187(a) includes the killing of an unborn fetus, it is broader
than the federal generic definition and we turn to divisibility.
D. Section 187(a) is Divisible
A statute is divisible if it “sets out one or more elements
of the offense in the alternative.” Descamps, 570 U.S.
at 257. Because we owe no deference to the IJ’s and BIA’s
conclusion that § 187(a) is divisible, we must decide the
7
The California model jury instructions also define “fetus” as “an
unborn offspring in the post embryonic period, after major structures
have been outlined. This period occurs in humans seven or eight weeks
after fertilization.” CALJIC 8.10 (West 2019); CALCRIM 520.
16 GOMEZ FERNANDEZ V. BARR
issue ourselves. Almanza-Arenas, 815 F.3d at 477. We
follow a three-step process. First, we examine the statute to
determine whether its text sets forth multiple crimes with
distinct elements or, instead, sets forth alternative means to
accomplish a single crime. Rivera v. Lynch, 816 F.3d 1064,
1078 (9th Cir. 2016). “Second, we confirm our reading of
the statute by looking to the conviction documents. Finally,
we consider how state courts have construed the statute of
conviction.” Id.Gomez argues that the statute is not divisible because
neither it, nor the jury instructions require jury unanimity
about whether the killing involved a human being or a fetus.
He avers that “murder of a human being or murder of a fetus
is the same crime.” We disagree.
By its text, § 187(a) defines “murder” disjunctively as
“the unlawful killing of a human being, or fetus, with malice
aforethought.” Cal. Penal Code § 187(a) (emphasis added).
Although this disjunctive text “alone cannot end the
divisibility inquiry,” Rendon v. Holder, 764 F.3d 1077, 1086
(9th Cir. 2014), it suggests that “human being” and “fetus”
are alternative elements. Descamps, 570 U.S. at 257
(providing as an example of alternative elements a statute
that says, “burglary involves entry into a building or an
automobile” (emphasis in original)). Section 187(b) also
provides that “[t]his section shall not apply to any person
who commits an act that results in the death of a fetus if any”
of three circumstances apply. Cal. Penal Code § 187(b).
These circumstances include compliance with California’s
Therapeutic Abortion Act; an act committed by certain
medical personnel and performed due to medically or
substantially certain death to the mother or the fetus; or an
act solicited, aided, abetted, or consented to by the mother.
Id. § 187(b)(1)–(3). None of these circumstances apply to
GOMEZ FERNANDEZ V. BARR 17
“a human being,” showing that California law distinguishes
the crime of killing of a fetus from the crime of killing of a
human being.
We “confirm this statutory interpretation by . . .
examining the Shepard documents to see whether the statute
displays alternative elements instead of alternative means of
committing the same crime.” Diego v. Sessions, 857 F.3d
1005, 1013 (9th Cir. 2017) (citation and internal quotation
marks omitted). Count One of the indictment charged
Gomez with unlawfully killing “a human being,” and lacks
any reference to the killing of a fetus. By referencing one
term to the exclusion of the other, the indictment indicates
that the statute contains a list of elements that concern a
separate crime. Descamps, 570 U.S. at 272 (“A prosecutor
charging a violation of a divisible statute must generally
select the relevant element from its list of alternatives.”);
Diego, 857 F.3d at 1013.
We verify our interpretation by considering state court
decisions. Diego, 857 F.3d at 1013. The conclusion that
§ 187(a) is divisible “finds further support in the fact that an
individual cannot violate the statute’s two offenses
simultaneously.” Rivera, 816 F.3d at 1079. California state
court decisions confirm that one cannot simultaneously
murder a “human being” and a “fetus” because “a fetus is
not a ‘human being’ within section 187’s definition of
murder as ‘the unlawful killing of a human being’[.]”
Dennis, 950 P.2d at 1055; People v. Valdez, 23 Cal. Rptr. 3d
909, 912 (Ct. App. 2005) (“[A] fetus is not a human being
within the meaning of the murder statute.”). The crime
involves the killing of a “human being” under § 187 only if
the fetus is “born alive.” People v. Taylor, 14 Cal. Rptr. 3d
550, 556 (Ct. App. 2004).
18 GOMEZ FERNANDEZ V. BARR
California state court decisions identify additional
features that distinguish the two crimes. For one, when the
killing involves a fetus, the state must “show that the fetus
progressed beyond the embryonic stage of seven to eight
weeks.” Davis, 872 P.2d at 602. Additionally, the crime of
killing a fetus has no lesser included offenses whereas the
crime of killing a human being does. See Dennis, 950 P.2d
at 1055 (noting “[t]here is no crime in California of
manslaughter of a fetus,” “but only the unlawful killing of a
human being can constitute manslaughter”); Valdez, 23 Cal.
Rptr. 3d at 912 n.1 (same).
The California model jury instructions are “persuasive
authority,” and they further confirm that § 187(a) is
divisible. See Martinez-Lopez, 864 F.3d at 1041; Ramirez v.
Lynch, 810 F.3d 1127, 1135 (9th Cir. 2016) (analyzing
model jury instructions to confirm divisibility analysis). The
model jury instructions require selection of either “human
being” or “fetus.” CALCRIM 520 (“[1A. The defendant
committed an act that caused the death of (another person/
[or] a fetus);]”); CALJIC 8.10 (West 2019) (“Every person
who unlawfully kills a [human being] [or] [fetus]. . .”); see
also Davis, 872 P.2d at 601 (discussing jury instructions for
“fetal murder” and rejecting viability requirement). Both
sets of instructions define “fetus.” CALJIC 8.10 (West
2019); CALCRIM 520. Furthermore, the use note to
CALJIC 8.10 instructs that “if a fetus is not involved,” one
must delete from the instructions that “[a] human fetus was
killed” and that “the killing was done with malice
aforethought,” thereby permitting the jury to find
manslaughter. CALJIC 8.10 (West 2019). The model jury
instructions confirm that the jury cannot take divergent
views on the terms “human being” and “fetus.” See Lopez-
Valencia, 798 F.3d at 869 (“[A] statute is indivisible if ‘the
jury may disagree’ on the fact at issue ‘yet still convict.’”).
GOMEZ FERNANDEZ V. BARR 19
Gomez errs in suggesting that § 187(a)’s use of the terms
“human being” and “fetus” are akin to a statute that only
requires a jury to find the existence of an indeterminate
“weapon.” Descamps, 570 U.S. at 273 (providing as an
example of an indivisible statute one that requires “only an
indeterminate ‘weapon’” so the jury can disagree on whether
it was a gun, knife, or tire iron). The statutory terms “human
being” and “fetus” are distinct terms whose meaning does
not overlap. Far from being irrelevant to a § 187 conviction,
the applicability of one element instead of the other has
consequences for what a prosecutor must charge and prove,
the instructions the jury receives and what the jury must find,
and the range of offenses to which a defendant may be
subject. See Lopez-Valencia, 798 F.3d at 871 (“The
categorical approach exists in large part to ensure that the
imposition of a consequence in federal proceedings does not
hinge on a fact that was irrelevant to a defendant’s earlier
conviction.”). Thus, § 187(a) is divisible because it creates
distinct crimes for the killing of a human being and the
killing of an unborn fetus.
E. Gomez’s § 187(a) Conviction Is an Aggravated
Felony
Because § 187(a) is divisible, we apply the modified
categorical approach and look to the conviction documents
to determine whether Gomez’s particular conviction meets
the federal generic definition of murder. Descamps,
570 U.S. at 263–65. The only conviction documents in the
record are the charging document and the abstract of
judgment. Gomez did not argue in his opening brief that, if
§ 187(a) is divisible, his conviction does not satisfy the
federal generic definition of murder. He has therefore
waived that argument. Diego, 857 F.3d at 1015 n.4.
Nonetheless, we have reviewed the conviction documents,
20 GOMEZ FERNANDEZ V. BARR
and conclude that the judgment against Gomez convicting
him of “Count 1A” for the violation of § 187(a) clearly links
with Count One of the indictment, which charged him with
unlawfully killing “a human being” in violation of § 187(a). 8
Gomez’s § 187(a) conviction is an aggravated felony, and he
is removable as charged.
II. Substantial Evidence Supports the BIA’s Denial of
CAT Deferral
Gonzalez also challenges the BIA’s decision affirming
the denial of CAT deferral. An applicant for CAT relief
must show that it is more likely than not that he will be
tortured if returned to his homeland. Garcia-Milian v.
Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (citation and
quotation marks omitted). We review “for substantial
evidence the factual findings underlying the . . . BIA’s
determination that [the applicant] was not eligible for
deferral of removal under the CAT.” Arbid v. Holder,
700 F.3d 379, 385–86 (9th Cir. 2012). “To reverse . . . . ‘the
evidence must compel a different conclusion from the one
reached by the BIA.’” Id. (quoting Zheng v. Holder,
644 F.3d 829, 835 (9th Cir. 2011)).
The undisputed evidence does not compel a different
conclusion than that of the BIA. Although “past torture is
ordinarily the principal factor on which we rely,” Nuru v.
Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005), Gomez
8
During oral argument, Gomez’s counsel speculated that there is an
ambiguity about whether Gomez was convicted of Count One in the
indictment because the judgment refers to a conviction for Count 1A.
Gomez waived this issue by not raising it in his opening brief. Diego,
857 F.3d at 1015 n.4. In any event, the abstract of the judgment still
shows that Gomez was convicted of the same underlying count with
which he was charged, namely, Count One.
GOMEZ FERNANDEZ V. BARR 21
presented no such evidence and concedes that he “was not
tortured himself.” Although he relied primarily on evidence
of harm that befell his sister, brother-in-law, and their
children in 1996, Gomez testified that 1997 was the last time
he had heard that the group was looking for his sister to get
“more things.” 9 Gomez provided no other evidence of any
threats or harm against him or his family members.
Although Gomez indicated that his brother had sold the
family’s home and gone into hiding, he explained that his
brother continued to live in Mexico unharmed. Gomez’s
speculation that the same individuals who targeted his family
members in 1996 would target him now if he returned is
insufficient to meet his burden. See Xiao Fei Zheng v.
Holder, 644 F.3d 829, 835–36 (9th Cir. 2011) (concluding
that the “speculative” claims of torture did not compel
reversal). Thus, substantial evidence supports the denial of
CAT relief.
CONCLUSION
We conclude that the federal generic definition of
murder in the INA’s aggravated felony provision means the
unlawful killing of a “human being,” a term which federal
law defines to exclude an unborn fetus. Section 187(a) is
broader than that federal generic definition of murder
because it includes an unborn fetus. Section 187(a) is
divisible because it creates distinct crimes for the unlawful
killing of a human being and the unlawful killing of a fetus.
Looking to his conviction documents, we conclude that
Gomez’s § 187(a) second degree murder conviction for the
unlawful killing of a human being is an aggravated felony
9
Gomez does not challenge the BIA’s determination that this
evidence is too stale to meet his burden and has thus waived that
argument. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011).
22 GOMEZ FERNANDEZ V. BARR
under the INA. He is, therefore, removable as charged. We
affirm the BIA’s denial of CAT deferral.
PETITION FOR REVIEW DENIED.