Javier Arellano Hernandez v. Loretta E. Lynch
2016 U.S. App. LEXIS 13884
| 9th Cir. | 2016Background
- Javier Arellano Hernandez, a lawful permanent resident since 1967, was convicted in Sept. 2009 of attempted criminal threats (Cal. Penal Code §§ 422, 664—felony), and two misdemeanors (simple assault; false imprisonment); he also had a Mar. 2009 drug-paraphernalia guilty plea.
- The state superior court suspended imposition of sentence on the felony, placed him on three years’ probation, and ordered 365 days in county jail as a term/condition of probation; misdemeanor counts were stayed.
- DHS initiated removal proceedings alleging he was removable as an aggravated felon based on the attempted criminal threats conviction (8 U.S.C. § 1101(a)(43)(F),(U)) and the earlier drug-paraphernalia conviction.
- The immigration judge found the 365-day term applied to the felony attempt-criminal-threats count, making it an aggravated felony; the BIA affirmed.
- Arellano Hernandez appealed, arguing (1) § 422/664 is not categorically a "crime of violence" and (2) the judgment designated the conviction a misdemeanor, so the one‑year imprisonment threshold for an aggravated felony was not met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under Cal. Penal Code § 422/664 is a "crime of violence" under 18 U.S.C. § 16(a) | § 422 can encompass threats (e.g., poisoning) that do not constitute "use of physical force," so it is not categorically a crime of violence | Prior Ninth Circuit precedent holds § 422 necessarily includes threatened use of physical force; § 16(a) is valid | Conviction is categorically a crime of violence under § 16(a); precedent controlling |
| Whether an attempted offense (Cal. § 664) changes categorical analysis | Attempt modifies nature of offense; may not be a crime of violence | Attempts of crimes of violence are themselves crimes of violence under Ninth Circuit law | Attempted criminal threats remain a crime of violence |
| Whether the superior court’s judgment treated the § 422 conviction as a misdemeanor (thus avoiding felony status) | Judgment language allegedly designated the conviction a misdemeanor | Record shows jury verdict and court identified attempted criminal threats as a felony; jail term and probation indicate it was "deemed a felony" under California law | The conviction was "deemed a felony"; court did not reduce it to a misdemeanor |
| Whether the 365-day jail term satisfies the "term of imprisonment at least one year" element for aggravated felony under 8 U.S.C. § 1101(a)(43)(F) | The 365 days were not imposed on the felony count; max misdemeanor jail would be 6 months | The 365-day term was imposed as part of probation for the felony count; suspended sentence and jail term count toward imprisonment | 365 days equals "at least one year"; conviction is an aggravated felony; cancellation of removal denied |
Key Cases Cited
- United States v. Villavicencio-Burruel, 608 F.3d 556 (9th Cir.) (holding Cal. § 422 categorically includes threatened use of physical force)
- Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir.) (treating § 422 as crime of violence)
- Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.) (voiding § 1101(a)(43)(F) as applied to § 16(b) but not invalidating § 16(a))
- United States v. Castleman, 134 S. Ct. 1405 (2014) (use of force can include indirect means like poisoning)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. en banc) (panel cannot overrule prior circuit precedent)
- Habibi v. Holder, 673 F.3d 1082 (9th Cir.) (treating 365 days as equivalent to at least one year for immigration/sentencing purposes)