Covarrubias Teposte v. Holder, 632 F.3d 1049

Covarrubias, a Mexican native and lawful permanent resident since 2002, was convicted in California in 2003 of Shooting at Inhabited Dwelling or Vehicle under CPC § 246, receiving a 7-year term.
Removal proceedings were initiated in 2007, charging Covarrubias as removable under § 237(a)(2)(A)(iii) for a conviction that is an aggravated felony crime of violence with at least one year imprisonment.
An IJ concluded CPC § 246 is a crime of violence under 18 U.S.C. § 16(a)/(b) and Covarrubias was removable; no relief from removal was sought.
The BIA agreed CPC § 246 qualifies as a crime of violence but relied only on § 16(b) and did not address § 16(a).
The court reviews de novo whether a conviction is a crime of violence; governing authorities define a crime of violence under § 16 as either using force or a substantial risk of force in the offense.
California precedent interprets CPC § 246 as a general-intent crime that can be committed recklessly, thus the statute may not necessarily involve a substantial risk of intentional force.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is CPC § 246 categorically a crime of violence under § 16(b)?	Covarrubias contends § 246 does not meet § 16(b) because it can be committed recklessly without intent to use force.	Government argues § 16(b) applies because the statute involves substantial risk of force in its commission.	No; CPC § 246 is not categorically a § 16(b) crime of violence.
Should the court apply the categorical or modified categorical approach?	Under Fernandez-Ruiz, a recklessness-based state crime may fail § 16(b); the categorical approach suffices since government did not raise the modified approach.	If the statute is broader than the federal provision, the modified approach is appropriate to examine elements.	We apply the categorical approach; the modified approach is not reached.
Does the record support removal based on a crime of violence under § 16(b) given California’s interpretation of CPC § 246 as a reckless offense?	California decisions show § 246 can be committed with conscious disregard without intentional use of force, undermining § 16(b).	The government emphasizes that reckless conduct may still create a substantial risk of force.	Covarrubias is not removable for an aggravated felony under § 16(b); the removal order is vacated.

Taylor v. United States, 495 U.S. 575 (Supreme Court 1990) (defines categorical approach for § 16(b))
Leocal v. Ashcroft, 543 U.S. 1 (Supreme Court 2004) (requires active use of physical force; ties § 16(a)/(b) mens rea to intentional force)
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (reckless or gross negligence not sufficient for § 16 crime of violence)
Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (defining when to treat state law felony for § 16(b))
United States v. Campos-Fuerte, 357 F.3d 956 (9th Cir. 2004) (felony status under state law can affect § 16(b) analysis)
United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (modified categorical approach; elements discovery)
Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005) (reckless conduct context in § 16(b) analysis)
Fernandez-Ruiz (en banc), 466 F.3d 1121 (9th Cir. 2006) (en banc discussion of requisite mens rea for § 16)
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008) (reiterates intent-based requirements under § 16)
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. 2007) (California § 246 may result from reckless conduct)