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Ninth Circuit Considers What Constitutes a Particularly Serious Crime

Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (C.A. 9, Jan. 27, 2009)

Virgilio Anaya-Ortiz (“Anaya”), a Mexican native, pled guilty to possessing a firearm under California state law after having been convicted of a prior unrelated felony charge. As a result, the INS placed Anaya in removal proceedings, alleging that he was removable for conviction of an aggravated felony as defined by federal law. An Immigration Judge found Anaya removable and ineligible for cancellation of removal, but did grant Anaya a continuance to apply for withholding of removal.

Anaya testified at his withholding of removal hearing as to the circumstances surrounding his prior conviction, including the fact that while he was driving drunk, his vehicle struck the wall of a house that collapsed onto and injured an elderly woman. The IJ held that because Anaya was convicted of a particularly serious crime, he was not entitled to withholding of removal or relief under the Convention Against Torture. Anaya appealed to the Bureau of Immigration Appeals, which affirmed the IJ decision. Anaya then filed this petition for review with the U.S. Court of Appeals.

The Court first addressed Anaya’s allegation that the IJ and the BIA erred in finding him removable in the first place. Utilizing the categorical approach, the Court concluded that the California state law firearm offense to which Anaya pled guilty was equivalent to the generic federal offense of being a felon in possession of a firearm. However, noting that the California offense potentially involved a broader range of conduct than its federal equivalent, the Court considered the modified categorical approach. In its analysis, the Court held that Anaya’s record of conviction established that the offense for which he was convicted included all of the elements enumerated in the generic federal offense; moreover, the Court pointed out that the reliance of the IJ and BIA on the abstract of judgment was appropriate. This portion of Anaya's appeal was rejected.

Next, the Court examined Anaya’s claim that the BIA erred as a matter of law in categorizing his state law offense as a particularly serious crime based on his testimony given at the withholding of removal hearing. The Court initially stated that since the Immigration and Nationality Act was silent on the definition of "particularly serious crime", the BIA was entitled to deference in its interpretation of the statute. Plus, the Court concluded, the BIA could look at any reliable information in determining whether an offense was a particularly serious crime, which would necessarily encompass Anaya’s testimony at the hearing. As such, the BIA’s interpretation of the statute applied to Anaya’s testimony was reasonable.

Finally, the Court reviewed whether the BIA used the correct legal standard in terms of properly considering the facts and circumstances regarding Anaya’s underlying felony conviction. As the IJ’s decision sufficiently analyzed the circumstances of Anaya’s conviction, and specifically referred to its dangerousness, the Court ruled that the IJ and BIA used the correct legal standard in determining that Anaya’s offense constituted a particularly serious crime.

 

 

Judge(s): Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and James K. Singleton, Senior District Judge
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Immigration
 
Amicus Lawyer(s) Amicus Law Firm(s)
Michael K. Mehr Law Office of Michael K. Mehr

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Gary Finn Law Offices of Gary Finn

 
Respondent Lawyer(s) Respondent Law Firm(s)
Ronald E. LeFevre Office of the District Counsel, Dept. of Homeland Security
Jennifer J. Keeney US Dept. of Justice, Civil Division/Office of Immigration Litigation
Melissa Neiman-Kelting US Dept. of Justice, Civil Division/Office of Immigration Litigation

 

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executing a court's probationary order or judgment). a court 902 anaya-ortiz v. mukasey tion . . . may be made by looking only to the record of convic- for withholding of removal under 8 u.s.c. or a published bia case)," kharana v. gonzales, 487 f.3d adduced at a removal hearing, 8 c.f.r. 1240.1(c), and noth- of conviction for "felony menacing" under colorado law. id. 1231(b)(3)(b)(ii). he asserts that the bia erred as a matter 1234 (cal. 2008) (emphasis omitted). it is ordinarily prepared croft, 543 u.s. 1 (2004), which held that state dui offenses the bia's reliance on his own testimony was improper. *the honorable james k. singleton, united states district judge for ing in the language of the "particularly serious crime" provi- deprives us of jurisdiction to evaluate discretionary decisions includes the following elements relevant to this case: (1) the tered this belief by basically barging into her home case: 03-74666 01/27/2009 page: 6 of 17 dktentry: 6785391 who is inadmissible or deportable from the united states if the 5 (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, conviction criminalizes a broader range of conduct than the c tion to determine whether a defendant was necessarily con- when applying the modified categorical approach. accord- alien poses a danger to the community"). 1 pared by a neutral officer of the court," and because a defen- analysis in reaching this conclusion. see afridi, 442 f.3d at castillo-rivera "dealt with categorizing a prior conviction for admitted" (alterations and internal quotation marks omitted)). case: 03-74666 01/27/2009 page: 8 of 17 dktentry: 6785391 plaint provided sufficient facts to establish that the defendant anaya's abstract of judgment states that he was convicted of tion of dangerousness focusing on the likelihood of future that he was not eligible for withholding of removal, because stranger's home. he hit the home with such force particularly serious crime determination, including the con- of removal, relief available to certain lawful permanent resi- 905anaya-ortiz v. mukasey anaya pleaded guilty to a violation of california penal code 4 had committed a "particularly serious crime" because "after able. an ij ordinarily considers any relevant evidence viction records and sentencing information, as well as other woman. [6] citing morales, anaya argues that the ij and bia erred tion [of the ina] unless that interpretation is contrary to the analysis as the "categorical approach," because in this step we explain and introduce evidence as to why a crime is property, but did not provide sufficient information to estab- offense described in 18 u.s.c. 922(g)(1) (e.g., 12021(a) stances and underlying facts of the conviction, [and] the type ocampo, 494 f.3d 1211, 1216 (9th cir. 2007) (noting that motion or upon the application of the parties." mitchell, 26 counsel case: 03-74666 01/27/2009 page: 17 of 17 dktentry: 6785391 virgilio anaya-ortiz, drinking alcohol to the point where he was intoxicated, [he] once the nature of the crime, as measured by its ele- that an offense constitutes a particularly serious crime, a sepa- california penal code 12021(a)(1), cannot qualify as the that anaya was removable as an aggravated felon and that he felony, in violation of vehicle code section 23153(b)." defendant assented." id. (internal quotation marks and cita- by the attorney general, 1252(a)(2)(d) preserves our juris- record of conviction" referred to in matter of n--a--m--, 24 approaches are not applicable to evaluating whether a crime kind of cell sentence." case: 03-74666 01/27/2009 page: 13 of 17 dktentry: 6785391 of judgment is sufficient to establish that anaya was con- firearm, 18 u.s.c. 922(g)(1), under the categorical petitioner, no. 03-74666 silent or ambiguous with respect to the specific issue before sions in the ina limits the scope of permissible evidence. see u.s.c. 1101(a)(43)(e)(ii). specifically, he argues that his of law when determining whether his drunk-driving convic- tion 1101(a)(43)(e)(ii) defines "aggravated felony" as includ- according to an abstract of judgment dated june 4, 2001, a danger to the community of the united states." 8 u.s.c. inquiry that morales erroneously held was required by matter dant has "the right to examine and challenge its content," with his car. he inflicted what the california statutes his removal hearing. we hold that such testimony is just the explain and introduce evidence as to why a crime is particu- steps. first, we "compare the elements of the statute of con- 889 described in chevron u.s.a., inc. v. natural resources any narcotic drug, and who owns, purchases, receives, or has in his record of conviction does not establish that he was neces- 24 i. & n. dec. 336, 342 (bia 2007). the bia explained that, ization service (ins) placed anaya in removal proceedings. taking a case-specific consideration of whether the circum- in its judgment, our decision in morales had misconstrued its jurisdiction to review whether the bia used the correct legal whether conduct proscribed by the statute is broader than the d.c., for the respondent. an alien is ineligible for withholding of removal "if the [7] we now hold that the bia's interpretation of the evi- jennifer j. keeney and melissa neiman-kelting, washington, defense council, inc., 467 u.s. 837, 842 (1984)." ins v. on petition for review of an order of the at anaya's initial removal hearing, the ij agreed with the of conviction need not have the interstate-commerce element court, provided that the defendant has the right to examine the 894 anaya-ortiz v. mukasey bia regulations, which provide that "an alien who has been united states v. castillo-rivera, which held that a state crime if it is reasonable, regardless of our prior decision in morales. a092-962-367michael b. mukasey, attorney lish that he was convicted of each element of the generic fed- stances of an alien's prior crime made it "particularly permissible--construction of the statute." id. under brand x, generic offense through the modified categorical approach, for determining whether a conviction is for a particularly seri- serious," see afridi, 442 f.3d at 1222, it is reasonable for the tial, not to mention the thousands of deaths each [9] the bia's "approach to determining whether a crime is agency to fill, displaces a conflicting agency construction." states, 495 u.s. 575 (1990), we answer this question in two we follow the same course here. anaya appealed this decision to the bia. on november 21, is addicted to the use of any narcotic drug'), the court may serious misconduct on the part of the alien" is not required by 23153(b), his drunk-driving conviction cannot constitute a see also simeonov v. ashcroft, 371 f.3d 532, 535 (9th cir. 901anaya-ortiz v. mukasey cumstances giving rise to his drunk-driving conviction. aguirre-aguirre, 526 u.s. 415, 424 (1999) (internal quotation removal, the ij reconvened a hearing on march 10, 2003 to determine if the crime was indeed particularly serious, we can case: 03-74666 01/27/2009 page: 5 of 17 dktentry: 6785391 1101(a)(43)(e)(ii). 907anaya-ortiz v. mukasey ing the "particularly serious crime" determination is one such respondent. to two years and eight months of imprisonment. the informa- unlawfully driving or taking a vehicle and receiving stolen aggravated felony. anaya quotes our decision in united states victed of all the elements of an "aggravated felony" under 1022, 1028 (9th cir. 2005) (quoting leocal v. ashcroft, 543 victed "of a particularly serious crime and is a danger to the is "particularly serious." matter of n--a--m--, 24 i. & n. ger to the community of the united states." 8 u.s.c. 1231(b)(3)(b)(ii). that "all reliable information may be considered in making a when the record of conviction comprises only the indictment the ij granted anaya a continuance to allow him to apply for determination, as set forth in matter of n--a--m--, is reason- f.3d 646, 652 n.3 (9th cir. 2000); see also kalubi v. ashcroft, nature of the "particularly serious crime" determination: interpretation of what evidence "an ij may refer to in deciding cedent holding that the statute unambiguously forecloses the that (2) has resided in the united states continuously for 7 years qualifies as a generic federal crime. second, if the statute of "aggravated felony" has the same meaning under the ina and "what an ij may refer to in deciding whether a prior offense of the united states, the state of california, or any other state, that the interior walls collapsed and injured a underlying facts of the conviction, [and] the type of sentence cir. 2007) (en banc). but this argument is foreclosed by v. vidal, 504 f.3d 1072 (9th cir. 2007) (en banc), where we plaint unless it had been incorporated by reference in the ambit of a particularly serious crime, all reliable follow a `modified categorical approach.' " 244 f.3d at 1022. person has possessed any firearm "in or affecting" interstate case: 03-74666 01/27/2009 page: 3 of 17 dktentry: 6785391 anaya's drunk driving constituted a "particularly serious 1231(b)(3)(b). although 8 u.s.c. 1252(a)(2)(b)(ii) 897anaya-ortiz v. mukasey 908 anaya-ortiz v. mukasey sideration of the record of conviction and sentencing informa- and something more serious to her i would have gotten some are not categorically "crime[s] of violence" under 18 u.s.c. p.3d at 1042; accord people v. morelos, 168 cal. app. 4th n--a--m-- explains, "once an alien is found to have commit- agreement, jury instructions, guilty pleas, transcripts of a plea 1231(b)(3)(b)(ii). "where the bia does not make an anaya's appeal. anaya timely filed a petition for review. les v. gonzales, 478 f.3d 972, 980 (9th cir. 2007). standard by failing to properly consider all the facts and cir- the statute because, when "determining whether a conviction [3] accordingly, we next address anaya's contention that viction with a federal definition of the crime to determine conviction and sentence." people v. delgado, 183 p.3d 1226, comms. ass'n v. brand x internet servs., 545 u.s. 967, case: 03-74666 01/27/2009 page: 15 of 17 dktentry: 6785391 plain and sensible meaning of the statute"). moreover, a "cir- his or her possession or under his or her custody or control any bia to maintain its practice of "allow[ing] both parties to 364 f.3d 1134, 1137 (9th cir. 2004) ("testimony must be withholding of removal pursuant to 8 u.s.c. 1231(b)(3)(a).5 of sentence imposed" when reaching its conclusion that mitchell, 26 p.3d 1040, 1042 (cal. 2001); cal. penal code u.s. 1, 11 n.8 (2004)); see also united states v. figueroa- particularly serious or not. we see no reason to sort of "reliable information . . . outside the confines of a [5] in morales, we held that the bia's interpretation of interpretation regarding what evidence may be considered in case: 03-74666 01/27/2009 page: 12 of 17 dktentry: 6785391 arate determination to address whether the alien is a danger to statute." morales, 478 f.3d at 982. deferring to matter of l 900 anaya-ortiz v. mukasey jail. according to his testimony before the ij, anaya drove judges, and james k. singleton,* senior district judge. into the home of his victim causing property damage and bod- it has been our practice to allow both parties to federal felon-in-possession offense in 922(g)(1), and there- transported in interstate or foreign commerce. is for [a particularly serious] crime, the essential key is in some repose in her own home, had an expectation his criminal actions." we therefore conclude that the bia proceeding and the judgment," and that it "may also include not constitute a conviction of an aggravated felony; and (2) id. at 342. we are bound by brand x to apply the bia's inter- felony under 1101(a)(43)(e)(ii). see united states v. l--s--, 22 i. & n. dec. 645, 651 (bia 1999), was "based on of l--s-- would be inappropriate given the discretionary federal generic crime, we use the modified categorical abstract of judgment be furnished to the officer charged with drunk driving results in untold loss of human poten- tion could be used." id. according to the bia, the limited victed of an aggravated felony at any time after admission is deciding whether a prior offense is a particularly serious factual basis for the plea was confirmed by the defendant, or cuit court must apply chevron deference to an agency's inter- particularly serious has evolved since" matter of frentescu. from removal, and risking ineligibility for asylum and with- under chevron and aguirre-aguirre. we based this holding determine whether the bia applied the correct legal standard 1218. "[i]n most cases, determining whether a crime is partic- gary finn, indio, california, for the petitioner. when he drunkenly drove his car into an elderly victim's diction to review "questions of law raised upon a petition for 2004) (noting that we give deference "to the bia's interpreta- an alien is ineligible for withholding of removal if "the alien, having c.f.r. 1240.7(b), on his own behalf in order to obtain relief deportable." for purposes of immigration law, an "aggravated (3) has not been convicted of any aggravated felony. interpreted in both criminal and noncriminal, i.e., immigra- united states. case: 03-74666 01/27/2009 page: 10 of 17 dktentry: 6785391 united states court of appeals in relying solely on his removal-hearing testimony in holding ing the violent use of a firearm], or who is addicted to the use of by a term of imprisonment of more than one year; and (2) the 12021(a)(1) for the crime of "possession of a fire- rejecting anaya's remaining arguments, the bia dismissed anaya's first argument is that the ij and bia erred in hold- withholding of removal under 8 u.s.c. 1231(b)(3)(b)(ii). rate determination of danger to the community is not california penal code 12021(a)(1) does not qualify as an under 1227(a)(2)(a)(iii). community of the united states," making him ineligible for fore qualified as an aggravated felony under 8 u.s.c. --s--, we held "that the particularly serious crime determina- agency's interpretation, and therefore contains no gap for the after having been admitted in any status, and viction records and sentencing information, as well viction for "driving under the influence & causing injury, a had been charged with each element of the generic crime, we 1212, 1218 (9th cir. 2006), overruled in part on other only a showing of negligence in the operation of a vehicle" appears to include the possession of a firearm by an individual a virgilio anaya-ortiz (anaya), a native and citizen of mex- the ins charged that anaya was removable under 8 u.s.c. at 26. a "comparable judicial record" includes a document refer to as great bodily injury on her. holding of removal should the ij determine that he has been 899anaya-ortiz v. mukasey gration appeals (bia) dismissing his appeal and ordering him factors as the nature of the conviction, the circumstances and larly serious or not." matter of n--a--m--, 24 i. & n. dec. dents who would otherwise be removable, because anaya had construction of the statute which it administers," the supreme to constitute a danger to the community." 8 c.f.r. ments that includes the state charging document, a signed plea attorney general decides that . . . (ii) the alien, having been explained that "[i]n order to identify a conviction as the mination that anaya committed a "particularly serious crime" victed of the elements of the federal generic crime. see been convicted of an aggravated felony. see 8 u.s.c. 1229b.4 vidal does not help anaya, however, because here the although we lack jurisdiction over the bia's ultimate deter- pretation in matter of n--a--m--, rather than the interpreta- dhs, 508 f.3d 1227, 1235-36 (citing nat'l cable & tele- abstract of judgment provides sufficient information to estab- the sentencing guidelines). government, or country or of an offense enumerated in subdivi- crime, morales, 478 f.3d at 982, so long as the bia's inter- [2] after rejecting the petitioner's interstate-commerce 904 anaya-ortiz v. mukasey . . . some comparable judicial record of this information." id. grounds by estrada-espinoza v. mukasey, ___ f.3d ___, 2008 interpretation of 1231(b)(3)(b)(ii) in matter of n--a--m-- tions omitted). determination where the alien is testifying under oath, see 8 convicted of a "particularly serious crime" under 8 u.s.c. 6 alien's life or freedom would be threatened in that country because of the offense for the felon-in-possession violation was a prior con- 898 anaya-ortiz v. mukasey 16. id. at 5. but the categorical and modified categorical ing an offense "described in" the federal felon-in-possession felon" and sentenced to a term of imprisonment of two approach. anaya argues that 922(g)(1) includes an generic federal definition." quintero-salazar v. keisler, 506 in or affecting commerce, any firearm or ammunition; or to after receiving anaya's application for withholding of [11] finally, anaya argues that because "reckless disre- opinion by judge ikuta purposes of sentencing in a criminal case, the [supreme] the bia determined that anaya's testimony "establishes that at 337 ("under section 18-3-206(1) of the colorado revised 1227(a)(2)(a)(iii), which states that "[a]ny alien who is con- 893anaya-ortiz v. mukasey august 6, 2007--pasadena, california [8] we now address whether a "particularly serious crime" for publication conviction and for use as the commitment order. people v. modified categorical approach. we conclude that it does. id. the bia therefore upheld an ij's "particularly serious snellenberger, 2008 wl 4717190 at *2, we may rely on it he will be a danger to the community. the ij's decision ana- by the clerk of court to "digest or summarize" a judgment of offense, 922(g)(1). see castillo-rivera, 244 f.3d at 1023. in ily injury." the bia also noted that anaya "was confined for ii the community." id. thus, "[o]nce the ins makes a finding crime." afridi, 442 f.3d at 1219; accord matter of n--a--m on august 29, 2002, the former immigration and natural- mony anaya gave at his removal hearing. convicted by final judgment of a particularly serious crime is whether the nature of the crime is one which indicates that the [1] anaya first contends that the state statute of conviction, 896 anaya-ortiz v. mukasey accepted as true in the absence of an explicit adverse credibil- n--a--m--, the bia discussed the "particularly serious ij also determined that anaya was ineligible for cancellation contained in 18 u.s.c. 922(g)(1) to qualify as an aggravated (1) who has been convicted in any court of, a crime punishable anaya's argument is not entirely clear, he cites leocal v. ash- interpretation of a statutory ambiguity." duran gonzales v. receive any firearm or ammunition which has been shipped or lish that he had been convicted of each element of the federal imposed." id. at 1219 (quoting matter of frentescu, 18 i. & tion under which he was charged stated that the predicate . . . extent that the full range of conduct encompassed by cpc tion was a "particularly serious crime" by considering the whether the bia and ij relied on improper evidence in mak- oct. 28, 2008) (en banc) (per curiam). eration in an analysis of a particularly serious crime a reasonable--and therefore permissible--construction of the offenses)." to ship or transport in interstate or foreign commerce, or possess ted a particularly serious crime, we no longer engage in a sep- 18 u.s.c. 922(g)(1) provides: precedent, provided that the court's earlier precedent was an whether a prior offense is a particularly serious crime." 478 not contain the "critical phrase `as charged in the informa- see navarro-lopez v. gonzales, 503 f.3d 1063, 1073 (9th who lived inside, causing injuries to her shoulder and leg. determine whether the statute of conviction categorically 3 judgment in making this determination. like the minute order . . . (e) an offense described in . . . (ii) section 922(g)(1), (2), (3), (4), or "which either do not have a mens rea component or require torily sanctioned, officially prepared clerical record of the he was sentenced arm by a felon" on march 21, 2001.1 marks omitted). accordingly, we ask "whether the statute is 895anaya-ortiz v. mukasey crime" determination based on the facts alleged in a "state- that she need not fear drunk drivers. [anaya] shat- indicate that only conviction records and sentencing informa- any person who has been convicted of a felony under the laws by imprisonment for a term exceeding one year; 8 u.s.c. 1229b(a) states: removed to mexico. we deny the petition. as noted in morales, we must defer to the bia's statutory in making its determination." afridi v. gonzales, 442 f.3d information may be considered in making a particu- n. dec. 244, 247 (bia 1982)). case: 03-74666 01/27/2009 page: 11 of 17 dktentry: 6785391 tion and sentencing information." id. we noted that the record so long as it is "reasonable," see morales, 478 f.3d at 982; sons or property whereupon he drove his car into the home of was intoxicated, began driving a motor vehicle in reckless dis- matter of n--a--m--, 24 i. & n. dec. at 342. as matter of said that it, if there had been some kind of injury, you know, alien-- c.f.r. 1208.16-18, and ordered him removed from the house and caused part of the wall to collapse on her, we retain alien's race, religion, nationality, membership in a particular social group, the charging document, the terms of a plea agreement or tran- the ij and bia committed legal error by failing to consider california penal code 12021(a)(1) states: law, an abstract of judgment is "a contemporaneous, statu- are insufficient alone to prove the facts to which a defendant iii regard for persons or property whereupon he drove his car case: 03-74666 01/27/2009 page: 9 of 17 dktentry: 6785391 and the judgment, the judgment must contain the critical 168 cal. app. 4th 261, 292 (cal. ct. app. 2008) (same). of conviction "consists of a narrow, specified set of docu- on the basis of anaya's testimony regarding his drunk- 8 u.s.c. 1158(b)(2)(a)(ii) & 1231(b)(3)(b)(ii). in under- a "particularly serious crime." we address each in turn. judgment. id. at 1087-88 (holding that "charging documents the crime of "possession of a firearm by a 357, 360 (bia 1996) (explaining that "a separate determina- began driving a motor vehicle in reckless disregard for per- case: 03-74666 01/27/2009 page: 2 of 17 dktentry: 6785391 correct legal standard in determining that anaya was con- 12021(a) may not constitute an aggravated felony as an explicit adverse credibility finding, we must assume that [the the district of alaska, sitting by designation. anaya also argues that the bia applied the wrong legal f.3d 688, 692 (9th cir. 2007). we refer to this step in our gard" is not an element of california vehicle code decision in matter of l--s--, which, although allowing con- is a particularly serious crime" was entitled to deference required." kankamalage v. ins, 335 f.3d 858, 861 n.2 (9th tion of being a felon in possession of a firearm under califor- pretation "is based on a reasonable--and therefore cir. 2003). this revised approach is contained in the current driving conviction, the ij held that anaya had been convicted anaya testified that his victim "ended up being okay right 903anaya-ortiz v. mukasey ico, petitions for review of a decision by the board of immi- phrase `as charged in the information.' " id. at 1087. in vidal, 1280, 1283 n.4 (9th cir. 2007), we will defer to that precedent based on his testimony at his removal hearing. accordingly, [4] anaya also argues that the judgment in his case does his victim causing property damage and bodily injury." after larly serious crime determination, including the con- cient reference to its dangerousness: v. agency no. convicted of specified misdemeanors, as well as by one `who at 344. we therefore defer to the bia's reasonable conclusion court has noted that where a statute `has both criminal and or political opinion." pretation of a statute regardless of the circuit court's contrary ment in support of warrantless arrest," as well as a judgment [10] the record does not support anaya's contention that see gonzales, 508 f.3d at 1239. his drunk-driving conviction does not constitute a conviction convicted of a particularly serious crime shall be considered determination may be based on an alien's own testimony at 906 anaya-ortiz v. mukasey we must apply chevron deference to the bia's most recent agency precedent on-point (either in the form of a regulation 1208.16(d)(2); see also matter of carballe, 19 i. & n. dec. (such as a minute order) prepared by a neutral officer of the crime" determination under 1231(b)(3)(b)(ii) and explained victed of the elements of the generic felon-in-possession ted that he had pleaded guilty to being a felon in possession year. [anaya] was driving drunk and ran into a held that we could not rely on the information in the com- 8 u.s.c. 1101(a)(43) states: "the term `aggravated felony' means wrong factors and by basing its determination on the testi- board of immigration appeals noncriminal applications,' the statute should be consistently interstate-commerce element not present in the state offense. anaya raises two arguments before us: (1) that he is not been convicted by a final judgment of a particularly serious crime is a dan- . . . it strikes me that this woman, who was no doubt attempts to place another person in fear of imminent serious ity of testimony giving rise to a "particularly serious crime" at that hearing, anaya admit- 1213(a) (requiring, in most cases, that a minute order or lyzed the nature of anaya's drunk driving offense with suffi- ity finding."). accordingly, we reject anaya's argument that case: 03-74666 01/27/2009 page: 14 of 17 dktentry: 6785391 into a house while driving drunk. the collision caused part of nia penal code 12021(a)(1) met the description of the ins's position and found anaya removable as charged. the (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms ing this determination, we may consider only "the terms of document and challenge its accuracy. see united states v. categorical approach to confirm that he was necessarily con- ment upon application by the defendant); people v. garcia, statutes, a person `commits the crime of menacing if, by any sarily convicted of all the elements of 922(g)(1) under the (g) it shall be unlawful for any person-- because under snellenberger the information in the abstract we reject anaya's arguments that he is not removable as felony" is an offense defined in 8 u.s.c. 1101(a)(43). sec- iv eral crime, without reference to his charging document. question of law that we have jurisdiction to review. see mora- case: 03-74666 01/27/2009 page: 4 of 17 dktentry: 6785391 wl 4615681, *9 n.15 (9th cir. oct. 20, 2008) (en banc). sion (a), (b), or (d) of section 12001.6 [specified offenses involv- case: 03-74666 01/27/2009 page: 1 of 17 dktentry: 6785391 generic federal offense of being a felon in possession of a found to potentially bring the offense within the firearm is guilty of a felony. script of colloquy between judge and defendant in which the for the ninth circuit for immigration purposes. person previously has been convicted of a crime punishable of a firearm on march 21, 2001. he testified that the predicate 758, 768 (cal. ct. app. 2008) (correcting an abstract of judg- case: 03-74666 01/27/2009 page: 16 of 17 dktentry: 6785391 statute, 18 u.s.c. 922(g)(1).2 f.3d at 980. in a more recent precedential decision, matter of that he had been convicted of a "particularly serious crime." review." as a result, "[w]hile we cannot reweigh evidence to serious" offense. may correct any errors in the abstract of judgment "on its own general, opinion snellenberger, 548 f.3d 699, 2008 wl 4717190, *2 (9th cir. whether the type and circumstances of his crime indicate that 1101(a)(43)(e)(ii), the bia correctly held him removable opinion i 2003, the bia affirmed the ij's decision. the bia concluded tion, applications." martinez-perez v. gonzalez, 417 f.3d drunk-driving conviction does not constitute a conviction of petitioner's] factual contentions are true." navas v. ins, 217 the respondent, after drinking alcohol to the point where he the attorney general may cancel removal in the case of an alien 1231(b)(3)(b)(ii). the ij also held that anaya was ineligible conviction for being a felon in possession of a firearm under morales. see gonzales, 508 f.3d at 1236 n.7. anaya's petition for review is denied. exclude otherwise reliable information from consid- anaya's next claim is that the ij and bia erred in holding of a "particularly serious crime" and was therefore ineligible once the elements of the offense are examined and filed january 27, 2009 information outside the confines of a record of conviction." 2 but since our decision in morales, the bia has clarified its light of snellenberger, we may rely on anaya's abstract of that he had been convicted of a "particularly serious crime" ularly serious requires a case-by-case analysis, using `such for relief under the convention against torture (cat), 8 when we "confront[ ] questions implicating an agency's years and eight months, which is sufficient under the modified the house's sheetrock wall to collapse on an elderly woman an aggravated felon and that the bia improperly determined approach, which requires us to review the record of convic- remove an alien to a country if the attorney general decides that the following the framework articulated in taylor v. united court has directed us to "appl[y] the principles of deference as other information outside the confines of a record shepard v. united states, 544 u.s. 13, 20-21 (2005). in mak- i. & n. dec. at 342. we see no reason to question the reliabil- or foreign commerce.3 545 u.s. at 982-83. offense to his felon-in-possession conviction was a drunk- ing that he was removable as an aggravated felon under 8 away afterwards because the judge even mentioned to me, he the defendant's judgment stated that he was convicted of "aggravated felony" conviction for immigration purposes. ments, brings it within the range of a "particularly ikuta, circuit judge: of a "particularly serious crime" under 8 u.s.c. castillo-rivera, 244 f.3d 1020, 1024 (9th cir. 2001). while it." id. (internal quotation marks omitted). if there is "binding removable because his felon-in-possession conviction does case: 03-74666 01/27/2009 page: 7 of 17 dktentry: 6785391 ous crime," and that the bia's interpretation in matter of dence that may be considered in a "particularly serious crime" section 1231(b)(3)(a) provides that "the attorney general may not b tion,' " and so it does not establish that his prior crime was an argued and submitted determine anaya's eligibility.6 the ins charged that anaya's convic- before: marsha s. berzon and sandra s. ikuta, circuit a violation of 922(g)(1) of conviction. because an abstract of judgment, like a minute order, "is pre- properly considered "the nature of the conviction, the circum- threat or physical action, he or she knowingly places or 980-82 (2005)). as brand x explained, "[o]nly a judicial pre- any explicit factual finding by the trial judge to which the on our conclusion that the ina is "silent regarding the basis tion in matter of l--s-- to which we previously deferred in secret document." 2008 wl 4717190 at *2. under california tion, "did not prohibit the examination of other evidence or dec. at 344. we therefore conclude that the bia applied the 12021(a)(1) qualifies as an "aggravated felony" conviction ingly, anaya's conviction under california penal code bodily injury.' "). argument in castillo-rivera, we explained that, "[t]o the at issue in snellenberger, an abstract of judgment is not "a that he is eligible for withholding of removal because his conviction of a "particularly serious crime." although --, 24 i. & n. dec. at 342 (reciting the same factors). generic crime. id. at 1075-77. although the criminal com- driving conviction, for which he was sentenced to one year in


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