Background
The petitioner, a lawful permanent resident from El Salvador, was convicted of carjacking under California Penal Code Section two one five A in two thousand six. The government sought removal based on this conviction being an aggravated felony crime of violence and later added charges regarding crimes of moral turpitude. The Immigration Judge and the Board of Immigration Appeals sustained the removal charges, dismissing the petitioner’s arguments that the conviction did not qualify as a crime of violence and that he had not waived challenges to the moral turpitude charge.
The court’s reasoning
The panel held that the generic crime of violence defined in United States Code Section sixteen A requires a higher level of intent for the use of force, specifically purposeful or knowing, than the California carjacking statute. Since fear alone is sufficient for a conviction under the state statute without the use, attempted use, or threatened use of physical force, it does not categorically match the federal definition. Furthermore, the modified categorical approach is inapplicable because the statute identifies only one set of elements and is not divisible.
What it means going forward
The decision clarifies that California carjacking convictions cannot automatically trigger removal as aggravated felonies for crimes of violence in the Ninth Circuit and mandates that the Board of Immigration Appeals address moral turpitude charges that were previously dismissed as waived.