and Submitted April 12, 2016 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A017-214-318
Gore (argued), Jones Day, Washington, D.C.; Beong-Soo Kim,
Jones Day, Los Angeles, California; for Petitioner.
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.
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.
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.
SMITH, Circuit Judge
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
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
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 ...