Chuen Piu Kwong v. Holder
2011 U.S. App. LEXIS 24153
9th Cir.2011Background
- Kwong, a native and permanent resident of the U.S., pled guilty in April 1997 to California Penal Code § 459 (first-degree burglary) and was sentenced to two years' imprisonment.
- Removal proceedings were initiated based on Kwong's California burglary conviction.
- The IJ based removal on the abstract of judgment, which stated first-degree burglary and a two-year sentence.
- The BIA adopted the IJ's decision and denied relief, including a motion to remand based on ineffective assistance of counsel.
- Kwong challenged whether the § 459 first-degree burglary qualifies as an aggravated felony and whether the abstract of judgment suffices to prove the conviction, among other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is first-degree burglary under § 459 a crime of violence? | Kwong (Kwong) argues Aguila-Montes controls and that § 459 does not meet violence criteria. | HOLDER argues Becker and Lopez-Cardona compel a finding that § 459 first-degree burglary is a crime of violence. | Yes; first-degree burglary is a crime of violence under 18 U.S.C. § 16(b). |
| Did Kwong exhaust his administrative remedies on the conviction degree and reliance on the abstract of judgment? | Kwong contends he exhausted related challenges in IJ/BIA proceedings. | Agency argued exhaustion on those issues; but the court found exhaustion satisfied. | Exhaustion satisfied; issues adequately raised and considered. |
| Is the abstract of judgment alone sufficient to establish a first-degree burglary conviction for removal purposes? | Kwong argued the abstract alone is insufficient evidence of the exact crime. | Government argued the abstract, coupled with context, suffices; the IJ relied on it. | Yes; the abstract of judgment suffices to establish first-degree burglary conviction. |
| Did the California amendment to § 460 affect the characterization of the degree as a crime of violence? | Kwong argued amendments broadened or altered the scope to include non-inhabited structures, affecting violence analysis. | The court read § 460 amendments to require entry into inhabited structures, preserving first-degree burglary as a crime of violence. | Amendments read to require unlawful entry of an inhabited structure; still first-degree burglary qualifies as a crime of violence. |
Key Cases Cited
- Becker, 919 F.2d 568 (9th Cir. 1990) (first-degree burglary is a crime of violence under 18 U.S.C. § 16(b))
- Lopez-Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011) (Becker controlling; Aguila-Montes no change; §459 is a crime of violence)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (undefined impact on crime-of-violence analysis under a different definition)
- Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (abstract of judgment alone may be insufficient to prove the exact conviction)
- Snellenberger, 548 F.3d 699 (9th Cir. 2008) (minute order can be considered; reconciles with challenged evidentiary sources)
- Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005) (administrative adoption of IJ order supports review of legal questions)
- Daas v. Holder, 620 F.3d 1050 (9th Cir. 2010) (de novo review of legal questions on aggravated felonies)