Jose Gomez-Fernandez v. William Barr
969 F.3d 1077
| 9th Cir. | 2020Background
- Jose Gomez Fernandez, a lawful permanent resident, was convicted by a jury of second‑degree murder under Cal. Penal Code § 187(a) (which defines murder as the unlawful killing of a "human being, or a fetus, with malice aforethought") and sentenced to 15 years‑to‑life.
- DHS charged Gomez with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony (murder) as defined in 8 U.S.C. § 1101(a)(43)(A).
- Gomez argued § 187(a) is broader than the INA generic definition of murder because it covers killing an unborn fetus, and he further argued § 187(a) is indivisible; he also sought deferral under the Convention Against Torture (CAT).
- The IJ and BIA concluded § 187(a) is divisible, that Gomez’s conviction matched the federal generic definition, and denied CAT relief; Gomez petitioned for review.
- The Ninth Circuit held the federal generic definition of murder is the unlawful killing of a "human being" (per 18 U.S.C. § 1111 read with 1 U.S.C. § 8, which excludes unborn fetuses), concluded § 187(a) is broader but divisible, applied the modified categorical approach to find Gomez’s conviction matched killing a "human being," and affirmed the denial of CAT deferral.
Issues
| Issue | Plaintiff's Argument (Gomez) | Defendant's Argument (Barr) | Held |
|---|---|---|---|
| Whether the federal generic definition of "murder" in the INA includes killing an unborn fetus | Federal generic murder includes fetal killings; § 187(a) is not broader than INA murder | Federal generic murder is the unlawful killing of a "human being," which under federal law excludes fetuses | Held: Federal generic murder excludes unborn fetuses (relying on §1111 and 1 U.S.C. §8) |
| Whether Cal. Penal Code § 187(a) is divisible between killing a "human being" and killing a "fetus" | §187(a) is indivisible; human/fetus language is alternative means, not alternative elements | §187(a) is divisible because it sets out disjunctive, alternative elements and California law treats them as distinct | Held: §187(a) is divisible (text, exclusion provisions, jury instructions, and state cases support divisibility) |
| Whether Gomez’s specific §187(a) conviction is an aggravated felony under INA | If divisible, conviction still does not constitute federal generic murder | Charging documents and judgment show he was charged with killing a "human being," matching federal generic murder | Held: Under the modified categorical approach, conviction corresponds to killing a "human being" and is an aggravated felony |
| Whether substantial evidence supports denial of CAT deferral | Gomez fears persecution based on past threats to family in 1996; asserts risk upon return | Government argues Gomez presented no evidence of past torture and the threats were remote and unconnected to him | Held: Substantial evidence supports denial—Gomez offered no evidence of his own past torture and the old, speculative threats did not meet the "more likely than not" standard |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishing the categorical approach)
- Shepard v. United States, 544 U.S. 13 (describing permissible conviction‑record materials for modified categorical approach)
- Descamps v. United States, 570 U.S. 254 (distinguishing indivisible statutes from divisible statutes; framework for modified categorical approach)
- Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (using federal criminal law to define INA generic offenses)
- United States v. Montgomery, 635 F.3d 1074 (8th Cir.) (interpreting 1 U.S.C. §8 to exclude fetuses from "human being")
- United States v. Spencer, 839 F.2d 1341 (9th Cir.) (earlier circuit discussion that §1111 covers prenatal death only if baby born alive)