Hector Ramirez v. Loretta E. Lynch
810 F.3d 1127
9th Cir.2016Background
- Ramirez is a native of El Salvador and a lawful permanent resident since 1992, with immediate family who are U.S. citizens.
- Ramirez served in the U.S. Navy for four years and was educated in the United States.
- In February 2000, Ramirez was convicted in California of felony child abuse under Cal. Penal Code § 273a(a).
- The Department of Homeland Security started removal proceedings in 2007, charging Ramirez as an alien convicted of a crime of violence and an aggravated felony.
- The BIA held § 273a(a) divisible and applying a modified categorical approach, concluding Ramirez was convicted of a direct infliction prong that could fit a crime of violence.
- The Ninth Circuit reviews de novo when the BIA reviews state-law elements and whether a state conviction falls within the generic federal offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 273a(a) is divisible and a crime of violence | Ramirez contends § 273a(a) is indivisible and not a crime of violence. | Government contends § 273a(a) is divisible and the direct infliction prong fits § 16’s crime of violence. | § 273a(a) is not divisible and not a crime of violence. |
| If divisible, whether the direct infliction prong falls within § 16 | Ramirez argues the direct infliction prong cannot be shown to meet the generic offense. | Government argues the direct infliction prong matches the generic crime of violence under § 16. | Not applicable because the statute is not divisible. |
| Application of the categorical vs. modified categorical approach to § 273a(a) | Ramirez asserts the statute is indivisible and the modified categorical approach should not be used. | Government argues the statute is divisible and the modified categorical approach should determine its fit. | The court applies the categorical approach and finds § 273a(a) broader than § 16. |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (defines the generic crime of violence for comparison)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (divisible vs. indivisible statute analysis)
- Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (3-step divisibility framework and Almanza-Arenas reference)
- Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) (statutory divisibility and division of legal theories vs. elements)
- Vargas, 251 Cal. Rptr. 904 (Cal. Ct. App. 1988) (continuous course of conduct and theories vs. elements under § 273a(a))
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (use of force requires intentional conduct and not negligence)
- Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (offenses through reckless or grossly negligent use of force cannot be crimes of violence)
- Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011) (elements vs. state-law interpretation in § 16 context)
- Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015) (divisibility and divisible statute analysis in the Ninth Circuit)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (reiterated approach to comparing elements with the generic offense)