Victor Rodriguez-Hernandez, a native of Mexico, faced removal proceedings after being convicted of misdemeanor harassment in Washington state in 2009. He sought cancellation of removal, asylum, and withholding of removal, arguing that his conviction did not constitute an aggravated felony. He also claimed he would face torture if returned to Mexico due to threats made against his family. The Immigration Judge and the Board of Immigration Appeals denied his requests, finding his conviction was for a crime of violence and that he failed to prove a likelihood of torture. The Ninth Circuit reviewed these determinations to decide if the state statute matched the federal definition of a crime of violence and if the evidence supported the denial of humanitarian relief.
The court applied the categorical approach to determine if the Washington harassment statute, RCW § 9A.46.020(1), was categorically a crime of violence under 18 U.S.C. § 16(a). The court first established that the statute is indivisible because Washington courts treat the alternative means of committing the crime as non-elemental, meaning the jury need not agree on which specific alternative was used. Consequently, the court could not look at the specific facts of Rodriguez-Hernandez's case to find a non-violent violation. The court then analyzed the elements of the statute as interpreted by Washington courts. It found that the statute requires a 'true threat,' defined as a serious expression of intention to inflict bodily harm or take a life, which places the victim in reasonable fear that the threat will be carried out. This requirement ensures that the statute criminalizes the threatened use of physical force capable of causing pain or injury, rather than de minimis contact or non-violent conduct. The court rejected amicus arguments that the statute could cover conduct like unlawful imprisonment by deception or minor property damage like graffiti, noting there was no realistic probability that Washington courts would apply the statute to such conduct. The court distinguished prior cases from other circuits involving property damage, emphasizing that those cases involved statutes that explicitly criminalized non-violent conduct, whereas Washington's harassment statute does not. Regarding the Convention Against Torture claim, the court found substantial evidence supported the denial. The petitioner testified that his family received threatening calls but could not identify the source, made no payments, and did not plan to visit Mexico. The court concluded there was no indication of a realistic probability that he would face torture with the consent or acquiescence of a public official.
The decision confirms that individuals convicted of harassment under Washington's specific statute are ineligible for cancellation of removal and asylum as aggravated felons. It clarifies that the 'true threat' requirement in Washington law satisfies the federal 'physical force' element, closing a potential loophole for non-violent interpretations. The ruling also reinforces the high evidentiary bar for Convention Against Torture claims, requiring specific proof of government acquiescence and a realistic probability of torture, which was not met in this case. The petition for review is denied, and the removal order stands.
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