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Boris Edember Delgado- Hernandez v. Eric H. Holder Jr.

October 9, 2012

BORIS EDEMBER DELGADO- HERNANDEZ, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



Agency No.A029-273-534 On Petition for Review of an Order of the Board of Immigration Appeals

Per curiam.

FOR PUBLICATION

OPINION

Submitted October 2, 2012*fn1 Seattle, Washington

Before: Michael Daly Hawkins, M. Margaret McKeown and Jay S. Bybee, Circuit Judges.

Opinion

PER CURIAM:

Boris Edember Delgado-Hernandez ("Delgado") seeks review of a final order of removal following the Board of Immigration Appeals' ("BIA") determination that his conviction for attempted kidnapping under California Penal Code § 207(a) is an aggravated felony because it is categorically a crime of violence.*fn2 We deny the petition because an ordinary case of kidnapping under this statute presents a substantial risk of force, and therefore § 207(a) defines a crime of violence.

BACKGROUND

Delgado, a citizen of El Salvador, was lawfully admitted to the United States on July 23, 2001, and became a lawful permanent resident in 2003. He pled guilty to the attempted kidnapping of his cousin on April 12, 2006 under California Penal Code § 207(a), and was sentenced to eighteen months in prison. The Department of Homeland Security initiated removal proceedings against Delgado in September of 2006, charging him as removable under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge found that attempted kidnapping under § 207(a) was an aggravated felony. Delgado timely appealed, and the BIA affirmed the decision in an unpublished opinion.

We have jurisdiction under 8 U.S.C. § 1252(a)(1), which provides for judicial review of final orders of removal, and under 8 U.S.C. § 1252(a)(2)(D), which provides for judicial review of constitutional and legal questions raised by petitioners found removable based on criminal activity. "[W]e review de novo the BIA's determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations." Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006). Because the BIA resolved this appeal in an unpublished decision, we defer to its interpretation of the INA only to the extent we find it persuasive. See id. at 1014-15.

ANALYSIS

[1] The sole issue on appeal is whether Delgado's conviction for attempted kidnapping is a crime of violence, thus making him removable as an aggravated felon. An "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F) means "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." Delgado's challenge to the BIA's determination turns on the definition of "crime of violence" in 18 U.S.C. § 16:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the ...


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