Tirso Rojas v. Eric H. Holder Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TIRSO ROJAS, No. 08-74965
Petitioner, DHS No. A77 108 966
v.
MEMORANDUM *
ERIC H. HOLDER JR., United States
Attorney General,
Respondent.
On petition for review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 8, 2010
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and SCULLIN, ** District
Judge.
Tirso Rojas petitions for review of the Board of Immigration Appeals'
("BIA") dismissal of his appeal of an immigration judge's decision finding him
removable and denying his motion to terminate proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Frederick J. Scullin, Jr., Senior United States District
Judge for the Northern District of New York, sitting by designation.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review final orders of
removal and under 8 U.S.C. § 1252(a)(2)(D) to review constitutional and legal
questions that petitioners, who are removable because of criminal activity, raise.
Furthermore, although we lack jurisdiction to review "any final order of
removal against an alien who is removable by reason of having committed" an
aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction to determine
whether an offense constitutes an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F) because that is a question of law. Suazo Perez v. Mukasey, 512
F.3d 1222, 1225 (9th Cir. 2008) (citing Morales-Alegria v. Gonzales, 449 F.3d
1051, 1053 (9th Cir. 2006) (stating that whether an offense constitutes an
"aggravated felony" under § 1101(a)(43)(F) is a question of law)).
Rojas was convicted of attempted kidnaping in violation of California Penal
Code §§ 207(a), 664. The BIA held that these convictions constituted an
aggravated felony crime of violence under § 1101(a)(43)(F). We review de novo.
Recently, in Delgado-Hernandez v. Holder, 582 F.3d 930, 932 (9th Cir.
2009) (per curiam), we held that attempted kidnaping under California Penal Code
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§ 207(a) is a crime of violence under 18 U.S.C. § 16(b) and thus an aggravated
felony under § 1101(a)(43)(F).1
Delgado-Hernandez is dispositive of the issues that Rojas raises in this case
and dictates a holding that Rojas' convictions for attempted kidnaping constitute an
aggravated felony under § 1101(a)(43)(F). Therefore, we do not have jurisdiction
to review the BIA's final order of removal. 8 U.S.C. § 1252(a)(2)(C).
For these reasons, we DENY the petition for review.
1
At oral argument, Rojas' counsel acknowledged that Delgado-Hernandez is
indistinguishable from this case.
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