United States v. Gonzalo Vasquez-Gonzalez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10285
Plaintiff-Appellee,
D.C. No.
v. 5:14-cr-00291-EJD-1
GONZALO VASQUEZ-
GONZALEZ, AKA Gonzalo OPINION
Vasquez-Gonzalez,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submission Deferred November 15, 2016*
Re-submitted August 22, 2018
San Francisco, California
Filed August 22, 2018
Before: J. Clifford Wallace, Richard R. Clifton,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Clifton
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. VASQUEZ-GONZALEZ
SUMMARY**
Criminal Law
The panel affirmed a conviction for illegal reentry in a
case in which the defendant brought two collateral attacks on
his underlying removal.
The panel rejected the defendant’s contention that his
removal was invalid because it was based on a conviction that
was not a crime of violence within the meaning of 18 U.S.C.
§ 16. The panel held that assault with a deadly weapon or
instrument other than a firearm or by means of force likely to
produce great bodily injury under Calif. Penal Code
§ 245(a)(1), as it was written prior to its amendment in 2011,
categorically qualifies as a conviction for a “crime of
violence” within the meaning of 18 U.S.C. § 16(a). Rejecting
the defendant’s argument that § 245(a)(1) can be satisfied by
negligent conduct, the panel concluded that the California
statute requires an intentional use of force.
Because the defendant has not shown that it was plausible
that he would have been granted discretionary relief from
removal pursuant to Section 212(c) of the Immigration and
Nationality Act, the panel rejected the defendant’s challenge
to the validity of his removal based on the immigration
judge’s failure to inform him of his eligibility for such
discretionary relief at the time of his deportation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. VASQUEZ-GONZALEZ 3
COUNSEL
Robert Carlin and Lara S. Vinnard, Assistant Federal Public
Defenders; Steven G. Kalar, Federal Public Defender; Office
of the Federal Public Defender, San Jose, California, for
Defendant-Appellant.
Meredith B. Osborn and Kirstin M. Ault, Assistant United
States Attorneys; J. Douglas Wilson, Chief, Appellate
Division; Alex G. Tse, Acting United States Attorney; United
States Attorney’s Office, San Francisco, California; for
Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
This case presents the question whether a conviction for
assault with a deadly weapon or instrument other than a
firearm or by means of force likely to produce great bodily
injury under California Penal Code § 245(a)(1), as it was
written prior to its amendment in 2011, qualifies as a
conviction for a “crime of violence” within the meaning of
18 U.S.C. § 16(a). We hold that it does.
Gonzalo Vasquez-Gonzalez, a citizen of Mexico, was
convicted under § 245(a)(1) in 1995. He was removed from
the United States because that conviction was determined to
be a crime of violence. He later returned to the United States
and was eventually convicted of illegal reentry in violation of
8 U.S.C. § 1326. He now appeals that illegal reentry
conviction.
4 UNITED STATES V. VASQUEZ-GONZALEZ
A valid removal order is a predicate element of a
conviction for illegal reentry under § 1326. A defendant may
therefore challenge a conviction for illegal reentry by
collaterally attacking his underlying removal. Vasquez brings
two collateral attacks on his removal. In his first collateral
attack, he argues that his removal was invalid because his
California conviction was not a crime of violence within the
meaning of 18 U.S.C. § 16. Section 16 contains two
subsections, (a) and (b), and the Supreme Court held § 16(b)
void for vagueness in Sessions v. Dimaya, 138 S. Ct. 1204(2018). Thus, we must look only to § 16(a) in determining
whether Vasquez’s conviction was for a crime of violence.
We conclude that his prior conviction was for a crime of
violence under § 16(a).
In his second collateral attack, Vasquez argues that he
was eligible for discretionary relief from removal at the time
of his deportation and that the immigration judge failed to
inform him of that eligibility. The failure to inform Vasquez
of his eligibility for relief can serve as a basis to collaterally
attack a removal order if Vasquez can establish that it was
plausible that he would have been granted relief from
removal. Based on the facts of his case, however, we
conclude that it is not plausible that he would have been
granted relief at the time of his removal.
We affirm Vasquez’s conviction for illegal reentry.
I. Background
Vasquez was brought by his mother to the United States
when he was five years old, and he became a legal permanent
resident when he was fourteen. He graduated from high
school in 1993.
UNITED STATES V. VASQUEZ-GONZALEZ 5
In 1994, Vasquez was arrested for felony grand theft from
a person. The same day, he was arrested for misdemeanor
battery arising out of a separate incident with a different
victim. He was convicted of both crimes and sentenced to
180 days of imprisonment and 36 months of probation. Just
over six months after his conviction, Vasquez stabbed a man
on the street after stealing two bottles of beer from him. He
was convicted of assault with a deadly weapon pursuant to
California Penal Code § 245(a)(1), and he was sentenced to
four years of imprisonment.
While incarcerated, Vasquez was involved in eight gang-
related fights, and he was found guilty of being in possession
of a stabbing instrument. According to Vasquez, the guards
at Corcoran State Prison forced him to fight other inmates.
He acknowledges, though, that he was charged with
involvement in a fight before his transfer to Corcoran. He
also admits that two fights and the charge for weapons
possession occurred after he was transferred away from
Corcoran.
In 1998, while Vasquez was in prison, he was placed in
removal proceedings following the issuance of a notice to
appear which alleged that he was removable under the
Immigration and Nationality Act (INA) for being convicted
of an aggravated felony. Vasquez was removed to Mexico on
September 7, 1999. He re-entered the United States without
inspection or permission thirteen days later. After his re-
entry, Vasquez worked full-time as a furniture deliveryman
and furniture assembler. He also helped to raise two
daughters, a biological daughter who is now 17 and a step-
daughter who is now 21.
6 UNITED STATES V. VASQUEZ-GONZALEZ
On May 13, 2014, Vasquez was charged with one count
of violating 8 U.S.C. § 1326 by illegally reentering the United
States. Prior to his charge for illegal reentry, Vasquez had
not been charged with any crime since his arrests in 1994.
Vasquez filed a motion to dismiss the information,
arguing that the 1999 removal order was invalid because the
immigration judge failed to advise him that he was eligible
for relief from removal under former section 212(c) of the
INA. The district court denied the motion, and Vasquez was
convicted of illegal reentry following a stipulated facts bench
trial. Vasquez was sentenced to 15 months of imprisonment
and a three-year term of supervised release.1
II. Discussion
“We review de novo the denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 when the motion is based
on alleged due process defects in an underlying deportation
proceeding.” United States v. Alvarado-Pineda, 774 F.3d
1198, 1201 (9th Cir. 2014) (citation omitted).
A. California Penal Code § 245(a)(1)
Vasquez challenges the validity of his underlying removal
order. “A defendant charged with illegal reentry pursuant to
8 U.S.C. § 1326 has the right to bring a collateral attack
challenging the validity of his underlying removal order,
because that order serves as a predicate element of his
1
Vasquez may have finished his term of imprisonment and his period
of supervised release. His case is not moot even if he has, because courts
“presume that a wrongful criminal conviction has continuing collateral
consequences.” Spencer v. Kemna, 523 U.S. 1, 8 (1998).
UNITED STATES V. VASQUEZ-GONZALEZ 7
conviction.” United States v. Ochoa, 861 F.3d 1010, 1014
(9th Cir. 2017) (citations omitted); see also United States v.
Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015).
Under the INA, an alien is removable if he “is convicted
of an aggravated felony at any time after admission.”
8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony includes
a “crime of violence” as defined by 18 U.S.C. § 16. See
8 U.S.C. §§ 1101(a)(43)(F). Vasquez was removed because
his California conviction was determined to be a crime of
violence under § 16. He argues now that his removal order
was invalid because his conviction did not qualify as a crime
of violence.
To determine whether Vasquez’s state law conviction
qualifies as a crime of violence, we apply the categorical
approach laid out in Taylor v. United States, 495 U.S. 575(1990). See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,
1125 (9th Cir. 2006) (en banc). The categorical approach
requires us to compare the elements of the state statute of
conviction to the elements of the generic federal crime, and
then to determine whether the full range of conduct covered
by the state statute falls within the conduct covered by the
federal statute. Suazo Perez v. Mukasey, 512 F.3d 1222, 1225
(9th Cir. 2008).2
2
In front of the district court, Vasquez did not argue that his prior
conviction was not categorically a crime of violence. Normally, a party
waives an issue by failing to raise it with the district court, but an issue
subject to waiver may be addressed, even on appeal, where good cause is
shown for the party’s failure to raise the argument earlier. United States
v. Aguilera-Rios, 769 F.3d 626, 630 (9th Cir. 2014). Vasquez’s argument
is premised on our opinion in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), which was affirmed by the Supreme Court in Sessions v. Dimaya,
138 S. Ct. 1204, 1223 (2018). Vasquez was convicted of illegal reentry
8 UNITED STATES V. VASQUEZ-GONZALEZ
Vasquez was convicted for violating California Penal
Code § 245(a)(1). At the time of Vasquez’s conviction, that
statute provided punishment for:
Any person who commits an assault upon the
person of another with a deadly weapon or
instrument other than a firearm or by any
means of force likely to produce great bodily
injury.
1993 Cal. Stat. 2168 (formerly codified at Cal. Penal Code
§ 245(a)(1)).
The term “crime of violence” is defined in § 16 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
of another may be used in the course of
committing the offense.
18 U.S.C. § 16.
The Supreme Court held that § 16(b) is void for
vagueness in Dimaya. See Dimaya, 138 S. Ct. at 1223. That
holding is retroactive to Vasquez’s removal. See Aguilera-
before we published the first Dimaya opinion. Accordingly, Vasquez had
good cause not to raise the argument earlier.
UNITED STATES V. VASQUEZ-GONZALEZ 9
Rios, 769 F.3d at 633 (when challenging a conviction for
illegal re-entry, a court’s decision is retroactive to the time of
removal if it invalidates the basis for removal). We must
therefore consider whether the full range of conduct covered
by the California statute falls within the definition provided
in § 16(a).
We have previously concluded that a conviction for
violation of California Penal Code § 245(a)(1) is categorically
a crime of violence for federal sentencing purposes. United
States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009); see also
United States v. Jimenez-Arzate, 781 F.3d 1062, 1065 (9th
Cir. 2015). In doing so, we relied on our opinion in United
States v. Heron-Salinas, 566 F.3d 898 (9th Cir. 2009), in
which we held that assault with a firearm under California
Penal Code § 245(a)(2) is categorically a crime of violence
under 18 U.S.C. § 16. See Grajeda, 581 F.3d at 1195–97
(discussing Heron-Salinas). Our analysis in Heron-Salinas
referred to language contained in both subsections of § 16,
both (a) and (b), so it arguably relied, at least in part, on the
language of § 16(b). Heron-Salinas, 566 F.3d at 899. As
§ 16(b) has since been held void, we revisit the question to
determine whether our past holdings remain valid. See Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
(discussing circumstances in which a three-judge panel of this
court may conclude that our prior precedent is no longer
valid).
Vasquez argues that the mens rea requirements for the
two statutes are not a categorical match.3 According to
3
Vasquez also argues, in passing, that the actus reas requirements of
the two statutes are not a categorical match. We disagree. The “force
necessary to constitute a crime of violence under 18 U.S.C. § 16(a) must
10 UNITED STATES V. VASQUEZ-GONZALEZ
Vasquez, § 16(a) requires an intentional use of force and the
California statute can be satisfied by unintentional conduct.
Vasquez is correct that § 16(a) requires an intentional use
of force. In Leocal v. Ashcroft, the Supreme Court explained
that § 16(a) encompasses “a category of violent, active
crimes.” Leocal v. Ashcroft, 543 U.S. 1, 11 (2004).
Accordingly, the Court held that § 16(a) requires “a higher
degree of intent than negligent or merely accidental conduct.”
Id. at 9. In Fernandez-Ruiz v. Gonzales, our court, sitting en
banc, held that § 16(a) requires “the intentional use of force
against the person or property of another.” Fernandez-Ruiz,
466 F.3d at 1132. We explained that reckless4 or grossly
negligent conduct is not enough to meet the mens rea
requirement of § 16(a). Id.
Vasquez argues that § 245(a)(1) can be satisfied by
negligent, and therefore unintentional, conduct. There,
however, we disagree. Section 245(a)(1) is an assault statute,
and the Supreme Court of California has expressly stated that
the mens rea for assault in California requires more than
negligent conduct. People v. Williams, 26 Cal. 4th 779, 788
(2001) (“mere recklessness or criminal negligence is still not
be violent in nature.” Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016
(9th Cir. 2006) (brackets omitted) (quoting Singh v. Ashcroft, 386 F.3d
1228, 1233 (9th Cir. 2004)). As we explained in Grajeda, § 245(a)(1)
requires force that is violent in nature. Grajeda, 581 F.3d at 1191–92.
4
In a different context, the Supreme Court later held that reckless
assault implies intentional conduct. Voisine v. United States, 136 S.Ct.
2272, 2278–80 (2016). We do not need to revisit the recklessness issue
to decide this case because, as discussed here, assault in California
requires more than recklessness. People v. Williams, 26 Cal. 4th 779, 788
(2001).
UNITED STATES V. VASQUEZ-GONZALEZ 11
enough”). Instead, assault in California requires an intent to
commit a battery. Id. at 787 (A “defendant is only guilty of
assault if he intends to commit an act which would be
indictable as a battery . . . .” (internal quotation marks and
alterations omitted)).
Vasquez seizes on language regarding probability used by
the California Supreme Court in Williams. For example, the
court explained that “assault only requires an intentional act
and actual knowledge of those facts sufficient to establish that
the act by its nature will probably and directly result in the
application of physical force against another.” Id. at 790(emphasis added). According to Vasquez, this probabilistic
language defines a negligence mens rea.
As explained above, however, the California Supreme
Court expressly rejected the conclusion that the mens rea for
assault could be satisfied by negligent or reckless conduct.5
Id. at 788. Thus, the probabilistic language does not establish
a negligence standard for assault in California. Instead, the
court used probabilistic language because assault is an
inchoate crime. Id. at 787 (“Because assault criminalizes
5
Vasquez does not address the California Supreme Court’s statement
that negligent conduct is not enough for assault in California. Instead, he
argues that the language of Williams sets forth a negligence mens rea as
defined by Elonis v. United States, 135 S. Ct. 2001, 2011 (2015). But the
Court in Elonis did not discuss Williams, nor did it discuss the mens rea
for assault. Instead, the Court construed a federal threats statute, holding
that a negligence standard was insufficient to meet that statute’s mens rea
requirement. Id. at 2012. The only relevant portion of Elonis is the
observation that a “reasonable person” standard is a negligence standard.
Id. But here, we are not dealing with a simple reasonable person standard.
Here, the statute requires an intent to commit a battery, and we have been
expressly told by the California Supreme Court that negligence is not
enough.
12 UNITED STATES V. VASQUEZ-GONZALEZ
conduct based on what might have happened—and not what
actually happened—the mental state for assault incorporates
the language of probability, i.e., direct, natural and probable
consequences.”). The use of the word “probably” did not
suggest that the defendant did not intend the action, but
reflects that the actual outcome of the action might not be
certain.6
The essential question is whether assault in California can
be committed accidently or whether it requires an intentional
use of force. As defined in California, assault “requires an
intentional act and actual knowledge of those facts sufficient
to establish that the act by its nature will probably and
directly result in the application of physical force against
another.” Id. at 790. We conclude that this definition
requires an intentional use of force.7 Thus, because assault in
6
Vasquez argues that California prosecutes negligent and reckless
conduct under § 245, but we are not persuaded. He cites California
Criminal Jury Instruction 875, but that instruction is consistent with the
Supreme Court of California’s opinion in Williams. Even if it were
inconsistent, we would take our direction from the decisions of the State’s
highest court. Likewise, although Vasquez is correct that a California
Court of Appeal criticized Williams, we follow the Supreme Court of
California. See People v. Wright, 100 Cal. App. 4th 703, 706 (Cal. Ct.
App. 2002) (criticizing Williams). The other cases cited by Vasquez are
not on point. In People v. Patzer, the jury was instructed that the
conviction required criminal intent, not merely negligence or recklessness.
2008 WL 4958659 at *5 (Cal. Ct. App. 2008). And in Jimenez-Arzate and
Ramirez v. Lynch, there is nothing in the dispositions to indicate that § 245
was applied to unintentional conduct. Jimenez-Arzate, 781 F.3d 1062;
Ramirez v. Lynch, 628 F. App’x 506 (9th Cir. 2016).
7
Vasquez argues that we held the mens rea for § 245 to require less
than intentional conduct in Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014)
(en banc). But we have already rejected that interpretation of Ceron. See
Jimenez-Arzate, 781 F.3d at 1065.
UNITED STATES V. VASQUEZ-GONZALEZ 13
California requires an intentional use of force, assault in
California satisfies the mens rea requirement for § 16(a).
Accordingly, we hold, consistent with our decisions in the
earlier cases cited above, that from its enactment in 1993 to
its amendment in 2011, California Penal Code § 245(a)(1)
was categorically a crime of violence as defined in 18 U.S.C.
§ 16(a).8
B. Immigration and Nationality Act § 212(c)
At the time of his removal, Vasquez was eligible for a
discretionary waiver of removal under former section 212(c)
of the INA.9 An immigration judge (IJ) is obligated to inform
an alien of his apparent eligibility for a discretionary waiver.
8 C.F.R. § 1240.11(a)(2); see also United States v. Arrieta,
224 F.3d 1076, 1079 (9th Cir. 2000). Vasquez contends that
the IJ failed to inform him of his eligibility for a potential
waiver, and the government does not argue otherwise.
An IJ’s failure to inform an alien of his apparent
eligibility for a discretionary waiver can serve as the basis for
a collateral attack on the underlying removal order under
8
In 2011, the words “any means of force likely to produce great
bodily injury” were removed from § 245(a)(1), and they were relocated to
a newly-created subsection (a)(4). 2011 Cal. Stat. 2287. The reorganized
version of the statute is not before us.
9
At the time of Vasquez’s removal, former section 212(c) of the INA
authorized permanent resident aliens to apply for discretionary waiver
from removal. 8 U.S.C. § 1182(c) (1995); see Ayala-Chavez v. INS,
944 F.2d 638, 640 n.2 (9th Cir.1991). An alien convicted of an
aggravated felony could apply for relief if his term of imprisonment was
less than five years. Vasquez’s sentence was for four years, so he was
eligible for relief under section 212(c). The government does not argue
otherwise.
14 UNITED STATES V. VASQUEZ-GONZALEZ
8 U.S.C. § 1326(d). See United States v. Valdez-Novoa,
780 F.3d 906, 913 (9th Cir. 2015). Vasquez must show
prejudice in order to successfully attack the validity of his
underlying deportation. See United States v. Rojas-Pedroza,
716 F.3d 1253, 1262 (9th Cir. 2013). To demonstrate the
requisite prejudice, Vasquez must “show[] that it is plausible,
rather than merely conceivable or possible, that an IJ would
have granted the relief for which he was apparently eligible.”
Valdez-Novoa, 780 F.3d at 914. A showing of plausibility
does not require a defendant to prove that relief was
“probable.” United States v. Raya-Vaca, 771 F.3d 1195,
1207 (9th Cir. 2014). In other words, Vasquez “need not
show that he definitely would have received immigration
relief.” Id. (internal quotation marks omitted).
“To assess whether a defendant has shown that he would
plausibly have been granted a discretionary form of relief
from removal, we follow a two-step process.” Id. at 1206(citation omitted). “First, we identify the factors relevant to
the agency’s exercise of discretion for the relief being
sought.” Id. (internal quotation marks and alterations
omitted). Second, “we determine whether, in light of the
factors relevant to the form of relief being sought, and based
on the unique circumstances of the defendant’s own case, it
was plausible that the agency official considering the
defendant’s case would have granted relief from removal.”
Id. (internal quotation marks and alterations omitted).
At the time of Vasquez’s removal, the Board of
Immigration Appeals had enunciated numerous factors to be
considered in determining whether or not to grant section
212(c) relief. Yepes-Prado v. U.S. I.N.S., 10 F.3d 1363, 1366
(9th Cir. 1993). Favorable considerations included: 1) family
ties within the United States; 2) residence of long duration in
UNITED STATES V. VASQUEZ-GONZALEZ 15
this country (particularly when residence began at a young
age); 3) hardship to the petitioner or petitioner’s family if
relief is not granted; 4) service in the United States armed
forces; 5) a history of employment; 6) the existence of
business or property ties; 7) evidence of value and service to
the community; 8) proof of rehabilitation if a criminal record
exists; 9) other evidence attesting to good character. Id.(citation omitted).
Adverse factors included: 1) the nature and underlying
circumstances of the exclusion or deportation ground at issue;
2) additional violations of the immigration laws; 3) the
existence, seriousness, and recency of any criminal record;
4) other evidence of bad character or the undesirability of the
applicant as a permanent resident. Id. (citation omitted).
Furthermore, “[w]here a 212(c) petitioner has committed
a particularly grave criminal offense, he must make a
heightened showing that his case presents unusual or
outstanding equities to warrant discretionary relief.” Id.“[S]uch a showing may be mandated because of a single
serious crime, or because of a succession of criminal acts
which together establish a pattern of serious criminal
misconduct.” Matter of Edwards, 20 I. & N. Dec. 191,
195–96 (BIA 1990).
We conclude that Vasquez would have been required to
make a heightened showing of unusual or outstanding
equities to warrant discretionary relief from removal. As
detailed above, Vasquez compiled an unfortunate record as a
young adult, starting at age 19 when he was convicted of
felony grand theft from a person and misdemeanor battery,
two separate crimes committed upon different victims. Later
that year, while still on probation for his prior convictions, he
16 UNITED STATES V. VASQUEZ-GONZALEZ
stabbed a man in the stomach after stealing two bottles of
beer from him, resulting in the conviction under California
Penal Code § 245(a)(1) discussed above.
A stabbing is a “single serious crime.” Likewise, a
stabbing, a felony grand theft, and a misdemeanor battery
constitute a “pattern of serious criminal misconduct” when
those crimes were all committed within one year of each
other.10 See United States v. Gonzalez-Valerio, 342 F.3d
1051, 1057 (9th Cir. 2003) (heightened showing required
where defendant was convicted of lewd acts on a child,
spousal abuse, and resisting arrest). Vasquez does not point
to any cases in which a court has looked at similarly serious
conduct and expressly declined to apply the requirement of a
heightened showing.
We conclude that Vasquez would not have nearly met the
burden of a heightened showing at the time of his deportation
in 1999. The equities in Vasquez’s favor would have
included his family ties within the United States and the fact
that he had been brought to this country at a young age. See
Yepes-Prado, 10 F.3d at 1366. Vasquez has not demonstrated
any other potentially positive equities. He did not serve in the
armed forces, and he had no business or property ties. He
argues that he worked after graduating high school, but given
that he was convicted at age 19, his employment history
could not have been substantial. He argues that he was a
10
While incarcerated for the stabbing, Vasquez was involved in eight
gang-related fights, and he was found guilty of being in possession of a
stabbing instrument. This conduct could also support the requirement of
a heightened showing, but it is not necessary to our conclusion. His
convictions are enough. Given that his convictions are enough, we do not
address Vasquez’s arguments regarding his prison conduct.
UNITED STATES V. VASQUEZ-GONZALEZ 17
value to the community because he graduated high school and
played sports while there, but that did not establish value to
the community as an adult, and his criminal conduct started
very soon after graduation. Vasquez offers no specific
evidence of rehabilitation or good character that he could
have presented to the IJ at the time of his removal.
While Vasquez argues that his family will suffer hardship
without him, his family circumstances were different when he
was deported in 1999. Our role is to determine whether
Vasquez would plausibly have been granted a discretionary
waiver at the time of his removal. Thus, we may only
consider the facts as they would have been when the IJ
considered Vasquez’s case. At that time, Vasquez was not
supporting his family because he had been incarcerated for
four years. He may have provided some support prior to his
incarceration, but speculation about that prior support would
not have constituted a heightened showing of unusual or
outstanding equities at the time of Vasquez’s deportation.
Vasquez cites a declaration by an immigration attorney
filed on his behalf. The attorney declared that, in her opinion,
Vasquez would have had a high probability of being granted
relief under section 212(c) at the time of his removal. The
attorney cites some cases in her declaration, but she does not
discuss any case in which an alien was convicted of three
crimes within a year, one of which was a stabbing. The
declaration does not persuade us that it was plausible that
Vasquez would have been granted a discretionary form of
relief from removal.
Vasquez also cites the Supreme Court’s opinion in INS v.
St. Cyr for the statistic that between 1989 and 1995,
51.5 percent of applications for relief were granted under
18 UNITED STATES V. VASQUEZ-GONZALEZ
section 212(c). INS v. St. Cyr, 533 U.S. 289, 296 n.5 (2001).
We may consider statistical evidence in analyzing the
plausibility of relief, but statistics alone are not enough.
Raya-Vaca, 771 F.3d at 1209. We find this statistic in
particular to be of little help to Vasquez. The statistic does
not capture the correct time frame because Vasquez was not
removed until 1999. More importantly, the statistic does not
distinguish between aliens whose criminal histories required
them to make a heightened showing of equities versus those
not required to make such a showing. Given these
limitations, the statistic does not persuade us that it was
plausible that Vasquez would have been granted relief.
III. Conclusion
From its enactment in 1993 to its amendment in 2011,
California Penal Code § 245(a)(1) was categorically a crime
of violence as defined in 18 U.S.C. § 16(a). Gonzalo
Vasquez-Gonzalez has not shown that it was plausible he
would have been granted discretionary relief from removal
pursuant to former INA section 212(c). Therefore, neither of
Vasquez’s collateral attacks succeed.
AFFIRMED.