Saavedra-Figueroa v. Holder
2010 U.S. App. LEXIS 23031
| 9th Cir. | 2010Background
- Saavedra-Figueroa, a Chilean native and U.S. permanent resident since 1970, was found removable for an aggravated felony and two CIMTs after admission, though the aggravated felony conviction was later vacated.
- NTA alleged removability for North Dakota gross sexual imposition (aggravated felony) and two California § 236 misdemeanor false imprisonments (CIMTs), which he admitted before an IJ.
- IJ sustained removability for the aggravated felony and CIMTs; BIA affirmed in a per curiam order.
- Saavedra-Figueroa obtained post-conviction relief—vacating the North Dakota conviction—which led the BIA to remand and later reconsideration orders (2007) that left the August 2005 CIMT removals as final.
- The Ninth Circuit held jurisdiction over review despite remand and concluded the August 2005 decision as it pertained to CIMTs remained a final order of removal.
- The central legal issue was whether California § 236 misdemeanor false imprisonment is a categorical CIMT; the court held it is not, and Saavedra-Figueroa is not removable under INA § 237(a)(2)(A)(ii).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction after BIA remand | Saavedra-Figueroa contends the BIA's June 2007 order kept the August 2005 removal final and reviewable. | The BIA's March 2007 order vitiated review by reopening/remanding the case. | Court has jurisdiction; August 2005 CIMT decision remains final. |
| California § 236 as a CIMT | § 236 misdemeanor false imprisonment is a CIMT under the generic definition due to moral turpitude. | § 236 is not a CIMT categorically because it does not require intent to harm and non-morally turpitudinous conduct can fall within it. | § 236 misdemeanor is not a categorical CIMT. |
| Remand for additional evidence | Remand could allow government to introduce additional, unspecified evidence to support removability. | Remand is appropriate to develop further grounds/evidence. | Remand not warranted; record does not support removability and no new facts justify remand. |
Key Cases Cited
- Lopez-Ruiz v. Ashcroft, 298 F.3d 886 (9th Cir. 2002) (remand divests jurisdiction)
- Timbreza v. Gonzales, 410 F.3d 1082 (9th Cir. 2005) (remand divests jurisdiction)
- Cordes v. Mukasey, 517 F.3d 1094 (9th Cir. 2008) (remand divests jurisdiction; CJ/IJ proceedings)
- Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008) (affirmed prior decision where no significant change)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc; framework for CIMT determinations)
- Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346 (11th Cir. 2005) (remand and upholding BIA review language)
- Taylor v. United States, 495 U.S. 575 (1990) (modified categorical approach; scope of conduct)
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (emphasizes intent in CIMT analysis)
- Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (non-fraud CIMTs; morality and intent considerations)
- Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006) (simple assault not a CIMT; intent matters)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (serious harm/intent considerations in CIMTs)
- People v. Agnew, 16 Cal.2d 655 (Cal. 1940) (true scope of § 236 and related distinctions)
- People v. Henderson, 19 Cal.3d 86 (Cal. 1977) (definition of false imprisonment elements)