Agency No. A42-024-428 On Petition for Review of an Order of the Board of Immigration Appeals
The opinion of the court was delivered by: Canby, Circuit Judge:
Argued February 15, 2008 Submitted October 20, 2011 San Francisco, California
Before: William C. Canby, Jr., Carlos T. Bea* and Milan D. Smith, Jr., Circuit Judges.
*Judge Carlos T. Bea was drawn to replace Judge Stephen G. Larson, who resigned during the pendency of this appeal.
Petitioner Chen Piu Kwong, a lawful permanent resident of the United States, was ordered removed on the ground that he had been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). He contends that the evidence was insufficient to establish that the crime of which he was convicted was an aggravated felony. We conclude that Kwong's conviction of first-degree burglary was a conviction of an aggravated felony, and was sufficiently established by the state court's abstract of judgment. We also reject Kwong's claim of ineffective assistance of counsel, and we accordingly deny his petition for review.
Kwong is a native and citizen of the People's Republic of China. He entered the United States as a lawful permanent resident in 1990. In April 1997, Kwong pleaded guilty to a violation of California Penal Code § 459, the California burglary statute, and was sentenced to two years in prison. As a consequence of his conviction, removal proceedings were initiated.
The evidence of Kwong's conviction that was before the IJ was a certified copy of the abstract of the judgment of the state court.*fn1 That abstract noted that Kwong had pleaded guilty to a violation of § 459 of the Penal Code and described the crime as "Burglary - First Deg." Section 460 of the Code defines first-degree and second-degree burglary; first-degree burglary is "burglary of an inhabited dwelling house, vessel . . . which is inhabited and designed for habitation, floating home . . . , or trailer coach . . . , or the inhabited portion of any other building." Cal. Penal Code § 460(a). The abstract of judgment also indicated that Kwong had been sentenced to two years of imprisonment.
The IJ held that Kwong's conviction for first-degree burglary qualified as an aggravated felony because it was a crime of violence. See 8 U.S.C. § 1101(a)(43)(F). The IJ later denied Kwong's petition for withholding of removal. The Board of Immigration Appeals ("BIA") adopted and affirmed the IJ's rulings with regard to the order of removal and denial of withholding. The BIA also denied Kwong's motion to remand on the ground of ineffective assistance of counsel.*fn2
The IJ and BIA found that Kwong is subject to a removal order as an alien "convicted of an aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) stripped the federal courts of jurisdiction "to review any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. 8 U.S.C. § 1252(a)(2)(C) (as amended). The REAL ID Act of 2005, however, restored jurisdiction over all "constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D) (as amended). "Whether an offense is an aggravated ...