28 I. & N. Dec. 418
BIA2021Background
- Respondent Omar A. Valenzuela, a Mexican national, was convicted in 2013 of carjacking under Cal. Penal Code §215(a) and sentenced to 5 years in prison.
- Removal proceedings charged him with being removable as an aggravated felon; the BIA previously concluded his conviction was an aggravated-felony theft offense but did not resolve whether it was a crime of violence under INA §101(a)(43)(F).
- The Ninth Circuit remanded for further consideration; Valenzuela then argued his conviction is not an aggravated-felony theft and sought remand to apply for relief before the IJ. Parties agree he is removable under §237(a)(1)(B).
- The BIA applied the categorical approach (focusing on statutory elements) to determine whether §215(a) matches the definition of a ‘‘crime of violence’’ incorporated by §101(a)(43)(F) (via 18 U.S.C. §16(a)).
- Relying on Stokeling and subsequent Ninth Circuit treatment (including Baldon), the BIA held §215(a) is categorically a crime of violence because it requires force sufficient to overcome a victim’s resistance; thus Valenzuela’s conviction is an aggravated felony and he is statutorily ineligible for relief.
- Valenzuela affirmatively waived Convention Against Torture protection; the BIA denied remand and dismissed his appeal.
Issues
| Issue | Valenzuela's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code §215(a) is categorically an aggravated-felony "crime of violence" under INA §101(a)(43)(F) (incorporating 18 U.S.C. §16(a)) | §215(a) can be violated by minimal, non-violent force (e.g., slow driving away), so it is not a categorical match | §215(a) has as an element the use/threat/attempted use of physical force against person or property and thus matches §16(a) | §215(a) is categorically a crime of violence under §16(a) and therefore an aggravated felony under §101(a)(43)(F) |
| Proper interpretation of the "physical force" requirement after Stokeling and Johnson | Johnson/precedent show a higher "violent force" requirement so §215(a) may be too broad | Stokeling clarifies that force sufficient to overcome resistance is "violent force," bringing §215(a) within §16(a) | Stokeling controls; force to overcome resistance satisfies §16(a); Solorio‑Ruiz is no longer controlling |
| Whether remand is warranted to allow application for relief | If conviction is not an aggravated felony, remand should be allowed so he can seek relief | Conviction is an aggravated felony and, given the 5‑year sentence, respondent is statutorily ineligible for relief; remand unnecessary | Remand denied; respondent ineligible for relief and appeal dismissed |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (explains categorical‑approach focus on statutory elements)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (restricts inquiry to elements and realistic probability of prosecution)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing pain or injury)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (force to overcome victim’s resistance qualifies as "violent force")
- Nieves‑Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) (earlier Ninth Circuit holding carjacking a crime of violence; later limited/abrogated)
- Solorio‑Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018) (held §215(a) did not require Johnson‑level violent force; later displaced by Stokeling/Baldon)
- United States v. Baldon, 956 F.3d 1115 (9th Cir. 2020) (reconciles Stokeling with Ninth Circuit law and concludes §16(a)’s property reach makes §215(a) a categorical match)