25 I. & N. Dec. 571
BIA2011Background
- Respondent Martinez, Honduran citizen, admitted as immigrant in 1991; convicted March 7, 1994 of assault with intent to commit a felony under Cal. Penal Code § 220.
- Removal proceedings were initiated based on § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony.
- Immigration Judge denied termination of proceedings, 212(c) waiver, and voluntary departure; respondent appealed.
- Issue focused on whether § 220 is a crime of violence under 18 U.S.C. § 16(a) and/or § 16(b), making the offense an aggravated felony.
- Court applied Taylor v. United States and the categorical approach to determine the offense qualifies as a crime of violence under § 16.
- Court held § 220 is categorically a crime of violence under § 16(a) and § 16(b); respondent removable as charged and ineligible for 212(c) waiver or voluntary departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 220 is a crime of violence under § 16(a). | Martinez: conviction under § 220 not necessarily a crime of violence. | BIA/State: § 220 entails assault with intent to commit violence; falls within § 16(a). | Yes; § 220 is a categorical crime of violence under § 16(a). |
| Whether § 220 also qualifies as a crime of violence under § 16(b). | Martinez contends § 16(b) analysis not satisfied. | § 220 inherently poses substantial risk of force in ordinary course. | Yes; § 220 is a crime of violence under § 16(b). |
| The effect of § 16(a)/(b) designation on aggravated felony status under § 101(a)(43)(F). | Conviction could be mischaracterized; impact on removability uncertain. | Conviction fits aggravated felony criteria; removal applies. | Respondent is removable as convicted of an aggravated felony. |
| Whether respondent is eligible for 212(c) waiver or voluntary departure given aggravated felony designation. | Waiver may be available for certain crimes of violence. | aggravated felony category has no statutory counterpart for 212(c) waiver; voluntary departure unavailable. | Ineligible for both 212(c) waiver and voluntary departure; appeal affirmed. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach for crimes of violence)
- Suazo-Perez v. Mukasey, 512 F.3d 1222 (9th Cir. 2008) (explains categorization under § 16)
- Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (categorical approach guidance for state crimes)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (focus on ordinary meaning of 'crime of violence' under § 16(b))
- James v. United States, 550 U.S. 192 (2007) (limits application of non-generic scenarios to § 16)
- United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008) (internal discussion of substantial risk under § 16(b))
- People v. West, 477 P.2d 409 (Cal. 1970) (scope of § 220 predicate offenses and intent)
- People v. Dillon, 95 Cal. Rptr. 3d 449 (Cal. Ct. App. 2009) (section 220 requires specific intent to use force against victim)
- People v. Maury, 68 P.3d 1 (Cal. 2003) (interpretation of 'intent to use force' in § 220)