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Hernandez v. Lynch

United States Court of Appeals, Ninth Circuit

August 1, 2016

Javier Arellano Hernandez, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Argued and Submitted April 12, 2016 San Francisco, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A017-214-318

          John Gore (argued), Jones Day, Washington, D.C.; Beong-Soo Kim, Jones Day, Los Angeles, California; for Petitioner.

          Don Scroggin (argued) and Sarah Maloney, Attorneys; Linda S. Wernery, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: J. Clifford Wallace, Mary M. Schroeder, and N. Randy Smith, Circuit Judges.

         SUMMARY[*]

         Immigration

         The panel denied Javier Arellano Hernandez's petition for review of the Board of Immigration Appeals' decision finding him removable and ineligible for cancellation of removal because his conviction for attempted criminal threats constitutes a crime of violence and aggravated felony.

         The panel held that Arellano Hernandez's conviction for criminal threats under California Penal Code § 422 is a categorical crime of violence, and that the § 664 "attempt" portion did not alter the crime of violence determination. The panel also held that Arellano Hernandez's § 422 conviction, which is a wobbler offense punishable under California law as a felony or misdemeanor, is an aggravated felony because the superior court designated it a felony and sentenced him to 365 days in jail. The panel thus found Arellano Hernandez removable pursuant to 8 U.S.C. § 1101(a)(43)(F) and ineligible for cancellation of removal.

          OPINION

          N.R. SMITH, Circuit Judge

         Javier Arellano Hernandez's conviction for attempted criminal threats, pursuant to California Penal Code sections 422 and 664, constitutes an aggravated felony for which he is removable. See 8 U.S.C. § 1101(a)(43)(F). First, attempted criminal threats is categorically a crime of violence as defined under 18 U.S.C. § 16(a). Second, the California superior court designated the conviction as a felony and imposed a sentence of "at least one year."

         I.

         In 1967, Arellano Hernandez entered the United States with his parents as a legal permanent resident. In March 2009, Arellano Hernandez pleaded guilty to unlawful possession of drug paraphernalia and was sentenced to six days' imprisonment. In September 2009, a jury convicted him of three separate crimes: (1) attempted criminal threats, a felony in violation of California Penal Code sections 422 and 664; (2) simple assault, a misdemeanor in violation of California Penal Code section 240; and (3) false imprisonment, a misdemeanor in violation of California Penal Code section 236. The superior court imposed a suspended sentence for attempted criminal threats and placed Arellano Hernandez on probation for a period of three years with certain terms and conditions, including 365 days in jail. The court stayed sentencing the misdemeanor counts of simple assault and false imprisonment pending Arellano Hernandez's probation.

         As a result of these convictions, the Department of Homeland Security ("DHS") began removal proceedings and issued a Notice to Appear. DHS alleged that Arellano Hernandez was removable under 8 U.S.C. § 1101(a)(43)(F), (U), because of his March 2009 drug paraphernalia ...


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