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[W] Anaya-Ortiz v. Mukasey

January 27, 2009; withdrawn and opinion filed January 25, 2010


On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-962-367.

The opinion of the court was delivered by: Ikuta, Circuit Judge


Argued and Submitted August 6, 2007 -- Pasadena, California.

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and James K. Singleton,*fn1 Senior District Judge.


Virgilio Anaya-Ortiz (Anaya), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal and ordering him removed to Mexico. We deny the petition.


According to an abstract of judgment dated June 4, 2001, Anaya pleaded guilty to a violation of California Penal Code § 12021(a)(1) for the crime of "POSSESSION OF A FIREARM BY A FELON" on March 21, 2001.*fn2 He was sentenced to two years and eight months of imprisonment. The information under which he was charged stated that the predicate offense for the felon-in-possession violation was a prior conviction for "Driving Under the Influence & Causing Injury, a felony, in violation of Vehicle Code section 23153(b)."

On August 29, 2002, the former Immigration and Naturalization Service (INS) placed Anaya in removal proceedings. The INS charged that Anaya was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." For purposes of immigration law, an "aggravated felony" is an offense defined in 8 U.S.C. § 1101(a)(43). Section 1101(a)(43)(E)(ii) defines "aggravated felony" as including an offense "described in" the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1).*fn3 A violation of § 922(g)(1) includes the following elements relevant to this case: (1) the person previously has been convicted of a crime punishable by a term of imprisonment of more than one year; and (2) the person has possessed any firearm "in or affecting" interstate or foreign commerce.*fn4 The INS charged that Anaya's conviction of being a felon in possession of a firearm under California Penal Code § 12021(a)(1) met the description of the federal felon-in-possession offense in § 922(g)(1), and therefore qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii).

At Anaya's initial removal hearing, the IJ agreed with the INS's position and found Anaya removable as charged. The IJ also determined that Anaya was ineligible for cancellation of removal, relief available to certain lawful permanent residents who would otherwise be removable, because Anaya had been convicted of an aggravated felony. See 8 U.S.C. § 1229b.*fn5

The IJ granted Anaya a continuance to allow him to apply for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A).*fn6

After receiving Anaya's application for withholding of removal, the IJ reconvened a hearing on March 10, 2003 to determine Anaya's eligibility.*fn7 At that hearing, Anaya admitted that he had pleaded guilty to being a felon in possession of a firearm on March 21, 2001. He testified that the predicate offense to his felon-in-possession conviction was a drunk-driving conviction, for which he was sentenced to one year in jail. According to his testimony before the IJ, Anaya drove into a house while driving drunk. The collision caused part of the house's sheetrock wall to collapse on an elderly woman who lived inside, causing injuries to her shoulder and leg. Anaya testified that his victim "ended up being okay right away afterwards because the judge even mentioned to me, he said that it, if there had been some kind of injury, you know, and something more serious to her I would have gotten some kind of cell sentence."

On the basis of Anaya's testimony regarding his drunk-driving conviction, the IJ held that Anaya had been convicted of a "particularly serious crime" and was therefore ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ also held that Anaya was ineligible for relief under the Convention Against Torture (CAT), 8 C.F.R. § 1208.16-18, and ordered him removed from the United States.

Anaya appealed this decision to the BIA. On November 21, 2003, the BIA affirmed the IJ's decision. The BIA concluded that Anaya was removable as an aggravated felon and that he had committed a "particularly serious crime" because "after drinking alcohol to the point where he was intoxicated, [he] began driving a motor vehicle in reckless disregard for persons or property whereupon he drove his car into the home of his victim causing property damage and bodily injury." ...

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