Fermin Nieves-Medrano v. Eric Holder, Jr.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FERMIN NIEVES-MEDRANO, AKA  Fermin Nedrano Nieves, No. 09-71949 Petitioner, v.  Agency No. A044-546-455 ERIC H. HOLDER JR., Attorney ORDER General, Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 19, 2009 Filed January 7, 2010 Before: Stephen S. Trott, William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges. COUNSEL Fermin Nieves-Medrano, Pro se, petitioner. Michelle Y. F. Sarko, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent. ORDER Petitioner was convicted of carjacking in violation of Cali- fornia Penal Code § 215 and sentenced to three years of 467 468 NIEVES-MEDRANO v. HOLDER imprisonment. The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s finding that petitioner was removable for an aggravated felony “crime of violence.” Peti- tioner seeks review of the BIA’s decision. We have jurisdic- tion to review constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D); Lisbey v. Gonzales, 420 F.3d 930, 932 (9th Cir. 2005) (concluding court has jurisdiction to determine whether conviction constitutes “crime of vio- lence”). This court has held that a conviction for robbery in viola- tion of California Penal Code § 211 is a categorical “crime of violence” under the Sentencing Guidelines. See United States v. Becerril-Lopez, 541 F.3d 881, 893 (9th Cir. 2008) (“[W]e hold that a conviction under Cal. Penal Code § 211 could only result from conduct that constitutes a ‘crime of violence’ for purposes of U.S.S.G. § 2L1.2.”). Although the definition in U.S.S.G. § 2L1.2 differs slightly from that used for immigra- tion cases, 8 U.S.C. §§ 1101(a)(43)(F) (“crime of violence” defined by 18 U.S.C. § 16), there is no meaningful distinction for purposes of this petition. Compare U.S.S.G. § 2L1.2, cmt. n.1 (2008) (defining “crime of violence” as certain listed offenses or as “any other offense . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another”) with 18 U.S.C. § 16(a) (defin- ing “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”) (emphasis added). The same elements that make § 211 a crime of violence are also required in § 215. They include the felonious taking of property in the presence of another “by means of force or fear.” Compare Cal. Penal Code § 211 with Cal. Penal Code § 215. We conclude that a conviction for carjacking under California Penal Code § 215 is categorically a “crime of vio- lence” under 8 U.S.C. § 1101(a)(43)(F). See Becerril-Lopez, 541 F.3d at 893. Accordingly, petitioner is removable pursu- ant to 8 U.S.C. § 1227(A)(2)(a)(iii). NIEVES-MEDRANO v. HOLDER 469 Petitioner’s contention that the BIA’s decision was boiler- plate is without merit. The BIA analyzed the aggravated fel- ony issue in detail. Petitioner’s due process and equal protection arguments are similarly unavailing. All pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) shall continue in effect until issuance of the mandate. PETITION FOR REVIEW DENIED.