Roberto Solorio-Ruiz v. Jefferson Sessions
881 F.3d 733
9th Cir.
2018
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Docket

Roberto SOLORIO-RUIZ, AKA Alejandro Cervantes-Calderon, AKA Manuel Ortiz Espinosa, AKA Mark Anthony Lopez, AKA Robert Salazar, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-73085

United States Court of Appeals, Ninth Circuit

January 29, 2018

Argued and Submitted December 6, 2017 San Francisco, California

whether consolidation of the proceedings was in fact unfair.

Given that Lender asserts now that de facto substantive consolidation was inappropriate, it is unclear why Lender did not challenge the Plan on that basis prior to confirmation. It is possible that, if there had been an objection raising the question, Debtors’ single-purpose entity structure would have defeated any request for substantive consolidation. The original loan documents required maintaining the Operating Debtors and the Mezzanine Debtors as separate entities. As a result, the bankruptcy court might have concluded that creditors treated Debtors as separate entities, and further that the special-purpose entity structure prevented their assets from becoming entangled thus rendering substantive consolidation unavailable under this circuit‘s test. See id. at 765-66. If so, the court could have required altering the distribution scheme to maintain entity separateness, thus preserving Lender‘s leverage over the Plan.

If, however, the bankruptcy court had instead determined that this case was a candidate for substantive consolidation, then an appeal of that determination would have involved an evaluation of this particular Plan on its facts and resulting equities rather than a challenge to the interpretation of a statute that governs all Chapter 11 reorganizations. But because Lender focused solely on the statute, the substantive consolidation objection is now waived.

In sum, I am not unsympathetic to Lender‘s argument that it was deprived of an opportunity to object to confirmation of the Plan, and I have concerns that entangling various estates in a complex, multi-debtor reorganization diminishes the protections afforded to creditors by the Bankruptcy Code. But I do not believe bolstering these protections requires the blanket statutory solution that Lender proposes. Rather, if a creditor believes that a reorganization improperly intermingles different estates, the creditor can and should object that the plan—rather than the requirements for confirming the plan—results in de facto substantive consolidation. Such an approach would allow this issue to be assessed on a case-by-case basis, which would be appropriate given the fact-intensive nature of the substantive consolidation inquiry. See (“[O]nly through a searching review of the record, on a case-by-case basis, can a court ensure that substantive consolidation effects its sole aim: fairness to all creditors.” (quoting )).

Jayashri Srikantiah (argued), Supervising Attorney; Brittany Benjamin (argued) and Adam Hersh (argued), Certified Law Students; Immigrants’ Rights Clinic, Mills Legal Clinic, Stanford Law School, Stanford, California; for Petitioner.

Melissa K. Lott (argued), Trial Attorney; Melissa Neiman-Kelting, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Jennifer G. Zipps,** District Judge.

OPINION

GRABER, Circuit Judge:

Petitioner Roberto Solorio-Ruiz, a native and citizen of Mexico, petitions for review of a final order of removal. Petitioner stands convicted of carjacking in violation of California Penal Code § 215(a). An immigration judge (“IJ“) ruled that Petitioner‘s crime of conviction is an aggravated felony, making him ineligible for relief from removal, because (1) the carjacking offense is a crime of violence, and (2) the carjacking offense is a theft offense. The Board of Immigration Appeals (“BIA“) affirmed on the first ground and did not reach the second. We review de novo whether a particular conviction under state law counts as a removable offense. , cert. denied, . For the reasons that follow, we hold that a California conviction under section 215(a) does not qualify as a crime of violence. We grant the petition to that extent and remand the case to the BIA to decide, in the first instance, whether Petitioner‘s offense qualifies as a theft offense.

FACTUAL AND PROCEDURAL BACKGROUND

In 1995, a California jury convicted Petitioner of carjacking in violation of California Penal Code § 215(a), and evading a police officer in violation of California Vehicle Code § 2800.2. Petitioner was sentenced to 10 years’ imprisonment on the carjacking charge and to one year and four months on the evading charge, plus enhancements that made the total sentence of confinement 21 years and four months. Thereafter, the government sought to remove Petitioner on the ground that the carjacking conviction is an “aggravated felony” within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii). The government advanced two theories: that Petitioner committed a “crime of violence,” 8 U.S.C. § 1101(a)(43)(F), and that he committed a “theft offense,” id. § 1101(a)(43)(G).

After a series of proceedings concerning Petitioner‘s representation and citizenship status, the details of which are not relevant to the issues before us, the IJ ruled that Petitioner is removable. But the IJ continued the hearing to allow Petitioner to file an application for relief from removal. Petitioner submitted an application for relief under former 8 U.S.C. § 1182(c) (“§ 212(c) waiver“), which was available to lawful permanent residents who had been lawfully domiciled in the United States for seven consecutive years. See (holding that a § 212(c) waiver remains available in certain circumstances); (discussing eligibility for a § 212(c) waiver).

The government then moved to pretermit the application, arguing that Petitioner was ineligible for a § 212(c) waiver. A § 212(c) waiver is not available if the applicant served an aggregate of more than five years of imprisonment for an aggravated felony. Petitioner concededly served a sentence of more than five years for the carjacking offense, but he disputed the government‘s contention that carjacking qualifies as an aggravated felony. The IJ granted the government‘s motion on the ground that the carjacking statute quali-

fied as a crime of violence and as a theft offense.

Petitioner timely appealed to the BIA. He challenged both categorizations of his conviction. The BIA held that the carjacking offense is a crime of violence and dismissed the appeal on that ground. The BIA did not reach the question whether the crime of conviction qualifies as a theft offense. Petitioner timely sought review in this court.

DISCUSSION

A. Crime of Violence

We must begin with (order), which squarely held that “a conviction for carjacking under California Penal Code § 215 is categorically a ‘crime of violence’ under 8 U.S.C. § 1101(a)(43)(F).” If Nieves-Medrano remains good law, that is both the beginning and the end of the case.

But we are bound by “intervening higher authority“; if a later, controlling authority is “clearly irreconcilable” with our earlier precedent, we “should reject the prior circuit opinion as having been effectively overruled.” (en banc). In 2010, the United States Supreme Court issued , which held that the physical force that a crime of violence entails1 must be “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson altered our understanding of how violent a crime must be to qualify as a crime of violence. See (holding, directly contrary to a pre-Johnson memorandum disposition in the same case, that a robbery conviction under section 812.13(1) of the Florida Statutes did not, under Johnson, categorically qualify as a violent felony).

Nieves-Medrano cannot stand in light of Johnson. In Nieves-Medrano, we said nothing about the level of violence required to violate California Penal Code § 215(a). Instead, we rested our decision entirely on , in which we held that robbery under section 211 was categorically a crime of violence under the Sentencing Guidelines. . Becerril-Lopez, too, lacks an analysis of the level of violence required to commit California robbery.2 Thus, neither Nieves-Medrano nor the sole case on which it relied demonstrates that we considered, at all, whether section 215(a) requires the use of violent force. Johnson—and the violence requirement that it announced—thus fatally undermined our decision in Nieves-Medrano, and we must consider anew whether California carjacking, after Johnson, qualifies as a crime of violence. See (holding that Johnson “effectively overruled” our decision in , by changing the crime-of-violence analysis); (“We must now [after Johnson] conclude that conviction of ‘resisting arrest’ under Arizona law is not categorically a crime of violence within the meaning of federal law, and that our decision in , to the extent it suggests otherwise, has been superseded by controlling, intervening authority.“).

To decide whether California carjacking constitutes a crime of violence after Johnson, we employ the categorical approach. That is, we consider whether every violation of the statute necessarily involves violent force. . In that inquiry, we look at “both the text of the state statute and the state courts’ interpretations of the statute‘s terms,” and we treat state cases examining “the outer contours of the conduct criminalized by the state statute” as “particularly important.” (internal quotation marks omitted).

Recently, in , the California Court of Appeal clarified the level of “force or fear” required to sustain a state conviction for carjacking. The court explained that California carjacking “requires only force in excess of that required to seize the vehicle,” however slight that may be. Id. Beyond that, the amount of force used is irrelevant. . California‘s carjacking statute thus does not require the violent force that Johnson demands of a crime of violence.

Hudson‘s facts are illustrative. There, the defendant took a car from a car dealership. . As the defendant began to drive the car away, an employee tried to stop him by banging on the trunk, opening the driver‘s door, and trying to grab the defendant. Id. at 776-77. There was no evidence that the defendant drove the car forcefully or fast. Id. at 777. But the movement of the car at about 5 to 10 miles per hour, while the dealership employee was attempting to stop the defendant, was sufficient “force” to support a conviction. Id. That was so because, in California, “the application of force inherent [in driving a vehicle away]” is enough to sustain a carjacking conviction, whenever the victim puts up the slightest resistance. Id. at 782; see also (“Defendant‘s action of attempting to drive away ... was sufficient.“). It thus cannot be said that California carjacking requires the use of violent force. As Hudson shows, one can satisfy section 215(a)‘s force requirement by driving a car at a slow speed—i.e., at a non-violent speed and without harming a person or property. Because California carjacking does not require the violent force that Johnson demands, California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F).

Our recent holding in (per curiam), is not to the contrary. There, we held that the federal offense of carjacking is a crime of violence under 18 U.S.C. § 924(c). Id. at 1257. But the federal definition of carjacking is quite different from California‘s definition:

Whoever, with the intent to cause death or serious bodily harm[,] takes a motor vehicle ... from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [be punished according to law].

18 U.S.C. § 2119.

As we observed in Gutierrez, carjacking “committed ‘by force and violence’ ... ob-

viously qualifies as a crime of violence under the Johnson standard.” (emphasis added). But a person need not use force and violence to commit California carjacking. Rather, a person need use only more force than that required to seize the vehicle. . And, for the reasons explained above, that quantum of force does not always involve the element of violence that Johnson requires.

Similarly, our decision in , does not require a different result here. There, we held that Johnson did not undermine our decision in , which held that a California statute criminalizing the infliction of corporal injury on certain relatives was a “crime of violence” under U.S.S.G. § 2L1.2. But in Laurico-Yeno, unlike in Nieves-Medrano, the opinion extensively considered the degree of violence required to commit the crime, concluding that the statute at issue required intentional, active violence sufficient to inflict trauma on another person. . Thus, Johnson did not “effectively overrule” Laurico-Yeno because, in Laurico-Yeno, we already had conducted the violence analysis that Johnson would later require. Here, both the statute at issue and our pre-Johnson analysis of it differ significantly from the statute at issue in Laurico-Yeno and our pre-Johnson analysis of it.3

B. Theft Offense

In reviewing a petition, we “consider only the grounds relied upon by the BIA.” (en banc) (internal quotation marks omitted). When the BIA‘s decision “cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.” (per curiam).

Here, because the BIA disposed of Petitioner‘s appeal on the theory that California carjacking is a crime of violence, it did not consider the IJ‘s alternate holding that California carjacking qualifies as a theft offense. We therefore remand the case to the BIA for it to consider in the first instance whether Petitioner‘s carjacking conviction qualifies as a theft offense under 8 U.S.C. § 1101(a)(43)(G).

CONCLUSION

California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F), and our holding to the contrary in Nieves-Medrano is no longer good law after Johnson. The question remains, though, whether California carjacking is a theft offense under 8 U.S.C. § 1101(a)(43)(G), and we remand the case for the BIA to consider that issue.

Petition GRANTED; REMANDED.

** The Honorable Jennifer G. Zipps, United States District Judge for the District of Arizona, sitting by designation.

Notes

1
1. Title 8 U.S.C. § 1101(a)(43)(F) incorporates the “crime of violence” definition in 18 U.S.C. § 16(a), which defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
2
2. We do not opine today on whether Becerril-Lopez remains controlling law after Johnson. Our post-Johnson decision in , suggests that it might. What matters here, though, is only that Becerril-Lopez did not explore expressly what level of violence the California robbery law requires.
3
3. additional suggestion that Johnson should not apply to the term “violence” in 18 U.S.C. § 16, , is in tension with our later decision in , where we held clearly that Johnson‘s definition of violence applies in the 18 U.S.C. § 16 context. Because the issue of Johnson‘s applicability to § 16 was not “presented for review” in Ayala-Nicanor—a case that concerned only the term “crime of violence” as used in the Sentencing Guidelines—we consider its treatment of 18 U.S.C. § 16 non-binding dictum. (en banc) (per curiam).
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