Background

• Delgado-Hernandez, a Salvadoran citizen, was lawfully admitted to the United States in 2001 and became a lawful permanent resident in 2003.
• He pled guilty to attempted kidnapping of his cousin under California Penal Code § 207(a) on April 12, 2006, receiving an eighteen-month sentence.
• DHS initiated removal proceedings in September 2006, charging Delgado as removable as an alien convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
• An Immigration Judge held that Delgado’s § 207(a) conviction was an aggravated felony; the BIA affirmed in an unpublished decision.
• Delgado appealed the BIA ruling; he also challenged removal relief claims, but those issues were waived for lack of proper briefing.
• The Ninth Circuit affirmed, holding that ordinary kidnapping under § 207(a) is a crime of violence under 18 U.S.C. § 16(b) due to substantial risk of force, and thus Delgado is removable as an aggravated felon.

Issues

Key Cases Cited

• United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (kidnapping can be violence without force as an element)
• United States v. Lonczak, 993 F.2d 180 (9th Cir. 1993) (kidnapping by force or fraud presents risk of violence)
• James v. United States, 550 U.S. 192 (2007) (substantial risk concept applied to offense elements)
• United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc; addressing overbreadth and definition of 'crime of violence')
• Leocal v. Ashcroft, 543 U.S. 1 (2004) (distinguishes injury risk from force in § 16(b) analysis)
• Michele D, 59 P.3d 164 (Cal. 2002) (California kidnapping nuances affecting force requirements)
• Rodriguez-Moreno, 526 U.S. 275 (1999) (treats kidnapping as a crime of violence in related federal context)
• Patino, 962 F.2d 263 (2d Cir. 1992) (kidnapping involves threat or use of force as violence)