Gil v. Holder
2011 U.S. App. LEXIS 12604
| 9th Cir. | 2011Background
- Gil, a native and citizen of Mexico, entered the United States unlawfully in 1990.
- In 2004, Gil pled no contest to carrying a concealed firearm in a vehicle under California Penal Code § 12025(a), a misdemeanor.
- The IJ found Gil statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C) because his § 12025(a) conviction was a firearms offense under § 1227(a)(2)(C).
- The IJ also denied voluntary departure both on statutory ineligibility and as a discretionary matter due to the firearm conviction.
- The BIA affirmed the IJ and dismissed Gil’s appeal, including the discretionary denial of voluntary departure.
- Gil petitions for review, challenging (1) the categorization of his § 12025(a) conviction as a firearms offense under § 1227(a)(2)(C) and (2) the discretionary denial of voluntary departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §12025(a) qualifies as a firearms offense under §1227(a)(2)(C) | Gil argues §12025(a) is broader than the federal statute and may not categorically fit §1227(a)(2)(C). | Gil contends the state crime does not fall within the federal firearms offenses as defined by §1227(a)(2)(C). | Conviction under §12025(a) categorically constitutes a firearms offense under §1227(a)(2)(C). |
| Whether the court should treat Padilla's observations as narrowing the categorical approach | Padilla suggests possible conduct outside the generic definition could occur, potentially outside §1227(a)(2)(C). | Padilla’s hypothetical is not an actual prosecution; we must apply the broad categorical approach. | Padilla's hypothetical does not remove §12025(a) from §1227(a)(2)(C) under the categorical approach. |
| Whether antique-firearm defenses affect the categorical analysis | Mendez-Orellana suggests an antique-firearm defense could narrow §1227(a)(2)(C). | The availability of an affirmative defense is not relevant to the categorical analysis. | Antique-firearm exception does not alter the conclusion that §12025(a) falls within §1227(a)(2)(C). |
| Whether the BIA's discretionary denial of voluntary departure is reviewable | Gil asserts the BIA erred by relying on the IJ’s discretionary denial linked to the conviction. | Because the BIA affirmed the discretionary denial, this court lacks jurisdiction to review it. | We lack jurisdiction to review the discretionary denial of voluntary departure; the challenge is dismissed. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to federal crimes)
- Velasquez-Bosque, 601 F.3d 955 (9th Cir. 2010) (broad interpretation of §1227(a)(2)(C) to cover firearms offenses)
- Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (rejects narrow readings and supports broad scope of §1227(a)(2)(C))
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability standard for applying state statutes to federal definitions)
- United States v. Asberry, 394 F.3d 712 (9th Cir. 2005) (elements-based approach in categorical analysis)
- Padilla, 98 Cal.App.4th 127 (Cal. App. 2002) (Cal. statute §12025 broader than custody/possession, discussed in Padilla)