Walter Quijada-Aguilar v. Loretta E. Lynch , 799 F.3d 1303 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER ANTONIO QUIJADA- No. 12-70070
AGUILAR,
Petitioner, Agency No.
A092-536-869
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 3, 2015—Pasadena, California
Filed September 1, 2015
Before: Harry Pregerson, Ferdinand F. Fernandez, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
2 QUIJADA-AGUILAR V. LYNCH
SUMMARY *
Immigration
The panel granted Walter Quijada-Aguilar’s petition for
review of the Board of Immigration Appeals’ denial of his
applications for withholding of removal under the
Immigration and Nationality Act and the Convention
Against Torture (CAT), as well as deferral of removal under
CAT.
The panel held that the BIA erred in finding that Quijada-
Aguilar’s conviction and eleven-year sentence for voluntary
manslaughter under California Penal Code § 192(a)
constituted a categorical crime of violence and particularly
serious crime (PSC). The panel held that because a person
may be convicted under § 192(a) for reckless conduct, the
statute encompasses a broader range of criminal intent than
the federal definition of a crime of violence in 18 U.S.C.
§ 16, which requires intentional use of force or substantial
risk that force will be intentionally used. The panel held that
Quijada-Aguilar was thus not ineligible for withholding of
removal based on having been convicted of an aggravated
felony PSC, and granted his petition on that ground.
The panel also granted and remanded for the BIA to
evaluate Quijada-Aguilar’s claim for deferral of removal
under CAT by considering the aggregate risk of torture
arising from Quijada-Aguilar’s family affiliation together
with the risk arising from his status as a criminal deportee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
QUIJADA-AGUILAR V. LYNCH 3
COUNSEL
Robert E. Dunn (argued), Frederick S. Chung, and Shawn
Liu, Gibson, Dunn & Crutcher, LLP, Palo Alto, California,
for Petitioner.
Kathryn Deangelis (argued), Lisa Morinelli, Anthony W.
Norwood, Senior Litigation Counsel, and Stuart F. Delery,
Acting Assistant Attorney General, United States
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for Respondent.
OPINION
NGUYEN, Circuit Judge:
Walter Quijada-Aguilar seeks review of the Board of
Immigration Appeals’ (“BIA”) denial of his applications for
withholding of removal under the Immigration and
Nationality Act (“INA”) and the Convention Against
Torture (“CAT”), as well as deferral of removal under CAT.
We grant his petition for review and remand for further
proceedings.
Background
Walter Quijada-Aguilar (“Quijada-Aguilar”), a citizen
of El Salvador, came to the United States in the mid-1970’s
as a young boy. His family was fleeing violence in El
Salvador, where his father and two uncles were military
police officers. In 1992, he was convicted of voluntary
manslaughter, in violation of California Penal Code (“CPC”)
§ 192(a), and was sentenced to eleven years of
imprisonment.
4 QUIJADA-AGUILAR V. LYNCH
Quijada-Aguilar was placed in removal proceedings on
September 19, 2005. He conceded removability, and sought
several forms of relief from removal. As relevant to this
appeal, he sought withholding of removal under the INA and
CAT, and deferral of removal under CAT based on
anticipated torture in El Salvador due to both his status as a
criminal deportee and his affiliation with his family
members who served in the Salvadoran military. He asserted
that his two uncles had been murdered by guerillas due to
their military membership, and his father has been missing
since he returned to El Salvador shortly after the family’s
arrival in the United States.
The IJ found Quijada-Aguilar to be ineligible for
withholding of removal and denied CAT relief. The BIA
conducted an independent review of the record and affirmed.
The BIA concluded that Quijada-Aguilar’s voluntary
manslaughter conviction is a categorical crime of violence
under 18 U.S.C. § 16(b), making it an aggravated felony. 8
U.S.C. § 1101(a)(43)(F). Because Quijada-Aguilar was
sentenced to eleven years for this offense, his conviction
constitutes a per se “particularly serious crime,” rendering
him ineligible for withholding of removal. Id.
§ 1231(b)(3)(B)(iv) (stating that aggravated felonies
resulting in a sentence of at least five years’ imprisonment
constitute “particularly serious crime[s]”).
Regarding deferral of removal under CAT, the BIA
concluded that the record lacked sufficient objective
evidence to demonstrate a likelihood of future torture based
on Quijada-Aguilar’s status as a criminal deportee. The BIA
found that Quijada-Aguilar waived any argument that he
would be tortured based on his family affiliation because he
QUIJADA-AGUILAR V. LYNCH 5
did not raise it in his brief before the BIA. Quijada-Aguilar
timely filed this petition for review. 1
Jurisdiction and Standard of Review
The IJ had jurisdiction pursuant to 8 C.F.R. § 1240.1, and
the BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction pursuant to 8 U.S.C. §§ 1252(a)(2)(D)
and (a)(4). Because the BIA conducted an independent
review of the facts and law, we review only the BIA’s
decision. Ahmed v. Keisler, 504 F.3d 1183, 1190 (9th Cir.
2007). We review de novo the BIA’s determination that a
conviction under California Penal Code § 192(a) is a crime
of violence. Covarrubias Teposte v. Holder, 632 F.3d 1049,
1052 (9th Cir. 2011). We review the BIA’s denial of relief
under CAT for substantial evidence. Arteaga v. Mukasey,
511 F.3d 940, 944 (9th Cir. 2007).
Discussion
A. Withholding of Removal
Aliens who have been convicted of a “particularly
serious crime” are ineligible for withholding of removal.
8 U.S.C. § 1231(b)(3)(B)(ii). An aggravated felony “for
which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years,” qualifies as a per se
“particularly serious crime.” Id. § 1231(b)(3)(B)(iv).
Aggravated felonies include any “crime of violence”
as defined in 18 U.S.C. § 16 for which the term of
1
Although Quijada-Aguilar was removed to El Salvador in April of
2013, his case is not moot because his removal order resulted in concrete
collateral consequences—specifically, a ten-year ban on returning to the
United States—that would be addressed by a grant of this petition.
Blandino-Medina v. Holder, 712 F.3d 1338, 1341–42 (9th Cir. 2013).
6 QUIJADA-AGUILAR V. LYNCH
imprisonment is at least one year. 8 U.S.C.
§ 1101(a)(43)(F).
Here, the BIA’s finding that Quijada-Aguilar is
ineligible for withholding of removal rests on its conclusion
that his voluntary manslaughter conviction under CPC
§ 192(a) categorically qualifies as a “crime of violence” with
a term of imprisonment of at least one year, making him an
aggravated felon. And, because he was sentenced to more
than five years’ imprisonment for that conviction, his
conviction was a per se particularly serious crime, making
him ineligible for withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(B)(iv). Quijada-Aguilar challenges only the
BIA’s determination that CPC § 192(a) is a crime of
violence. For the reasons set forth below, we agree with
Quijada-Aguilar that the BIA erred.
To determine whether a state conviction constitutes a
crime of violence under 18 U.S.C. § 16, we apply the
“categorical approach” set forth in Taylor v. United States,
495 U.S. 575 (1990). Ruiz-Morales v. Ashcroft, 361 F.3d
1219, 1221–22 (9th Cir. 2004). Under this approach, we
“‘look only to the statutory definitions’—i.e., the
elements—of a defendant’s prior offenses . . .’ when making
a comparison between a prior conviction” and the relevant
generic definition. Rendon v. Holder, 764 F.3d 1077, 1082–
83 (9th Cir. 2014) (quoting Descamps v. United States, 133
S. Ct. 2276, 2283 (2013)) (some internal quotation marks
omitted). In examining the statutory definitions, we also
look to relevant caselaw. See Covarrubias Teposte, 632 F.3d
at 1054 (“Applying the categorical approach, ‘we consider
not only the language of the state statute, but also the
interpretation of that language in judicial opinions’ to give
meaning to [the statute’s] elements . . . .” (quoting Ortega-
Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006))).
If the state statute “criminalizes more conduct” than the
QUIJADA-AGUILAR V. LYNCH 7
relevant federal generic definition, it is not a categorical
match. See United States v. Gonzalez-Monterroso, 745 F.3d
1237, 1240 (9th Cir. 2014).
We hold that CPC § 192(a) is not categorically a crime
of violence because it encompasses a broader range of
criminal intent than the federal definition of a crime of
violence in 18 U.S.C. § 16. 2 Specifically, in order to
constitute a crime of violence under 18 U.S.C. § 16, “the
underlying offense must require proof of an intentional use
of force or a substantial risk that force will be intentionally
used during its commission.” United States v. Gomez-Leon,
545 F.3d 777, 787 (9th Cir. 2008); see also Fernandez-Ruiz
v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc)
(expressly overruling prior cases that found “offenses
committed through the reckless, or grossly negligent, use of
force” to be crimes of violence under 18 U.S.C. § 16). By
contrast, the California Supreme Court has clarified that a
person may be convicted of voluntary manslaughter under
2
“Crime of violence” is defined as:
an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or . . . any other offense
that is a felony and that, by its nature, involves a
substantial risk that physical force against the person
or property of another may be used in the course of
committing the offense.
18 U.S.C. § 16.
8 QUIJADA-AGUILAR V. LYNCH
CPC § 192(a) for merely reckless conduct. 3 People v. Lasko,
999 P.2d 666, 672 (Cal. 2000). Because a person may be
convicted of voluntary manslaughter under California Penal
Code § 192(a) for reckless conduct—conduct that falls
outside the definition of a crime of violence set forth in 18
U.S.C. § 16—we conclude that § 192(a) is not categorically
a crime of violence. 4 As a result, Quijada-Aguilar is not
ineligible for withholding of removal based on having been
convicted of an aggravated felony particularly serious crime.
We therefore grant Quijada-Aguilar’s petition for review on
this ground.
The government argues that CPC § 192(a) was limited to
intentional conduct at the time of Quijada-Aguilar’s
conviction in 1992, regardless of what subsequent California
cases have stated. Resp. Br. 19–21 (citing People v.
Brubaker, 346 P.2d 8, 12 (Cal. 1959)). According to the
government, the focus of the categorical approach must be
on the interpretation of the statute that prevailed at the time
of the conviction, not on changes in that interpretation
announced later. The government’s argument fails to
recognize that Lasko holds that the intent to kill was never
an element of voluntary manslaughter. In this regard, the
Lasko Court characterized prior California cases that
seemingly required an intent to kill as “fleeting
observation[s]” and “mere dictum,” and unequivocally
3
California Penal Code § 192(a) provides that voluntary manslaughter
is the “unlawful killing of a human being without malice . . . upon a
sudden quarrel or heat of passion.”
4
The government does not contend that the modified categorical
approach applies. Thus, “our inquiry ends after conducting the
categorical analysis.” Fregozo v. Holder, 576 F.3d 1030, 1039 n.6 (9th
Cir. 2009).
QUIJADA-AGUILAR V. LYNCH 9
stated that “voluntary manslaughter does not require an
intent to kill.” 999 P.2d at 671–72. The Lasko Court reached
this conclusion in heavy reliance on the statutory language
of Penal Code § 192(a), which has remained constant since
1872. See id. at 671 (noting that the “statutory provision
defining voluntary manslaughter contains no requirement of
intent to kill”). Compare Cal. Penal Code § 192(1) (1872),
with Cal. Penal Code § 192(a) (West 2015).
Rather than changing or broadening the elements of
voluntary manslaughter, then, Lasko set forth the law as it
always was, including at the time of Quijada-Aguilar’s
conviction in 1992. See People v. Crowe, 87 Cal. App. 4th
86, 94–95 (2001) (“[Lasko] did not ‘redefine’ the crime of
voluntary manslaughter. Instead, it simply acknowledged
the exact words contained in the crime’s statutory definition
and gave effect to the fact that the Legislature had not
included intent to kill in that definition although previous
decisions had not given proper recognition to that
omission.”). As an opinion of the California high court,
Lasko’s characterization of California law, both past and
present, is binding upon us. See Johnson v. United States,
559 U.S. 133, 138 (2010). Following Lasko, we therefore
must reject the government’s claim that voluntary
manslaughter required an intent to kill at the time of Quijada-
Aguilar’s conviction. 5
5
For this same reason, we reject the government’s reliance on the
standard jury instruction in effect prior to Lasko, which required an intent
to kill. See Lasko, 999 P.2d at 669–70 (holding that CALJIC No. 8.40
(6th ed.) was improper “because intent to kill is not a necessary element
of voluntary manslaughter”).
10 QUIJADA-AGUILAR V. LYNCH
B. Convention Against Torture
Although the BIA deemed Quijada-Aguilar per se
ineligible for withholding of removal based on its erroneous
interpretation of CPC § 192(a), it considered the merits of
his application for deferral of removal because that relief
remains available to those convicted of particularly serious
crimes. See 8 C.F.R. § 1208.17(a).
In order to qualify for deferral of removal under CAT, a
petitioner must prove that “it is more likely than not that he
or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2). The BIA denied
Quijada-Aguilar CAT relief on the ground that he failed to
meet his burden of proving he would more likely than not
face torture upon his return to El Salvador because of his
status as a criminal deportee. The BIA found that “there
[was] no indication that . . . El Salvador’s anti-gang policies
would be used to target [Quijada-Aguilar] simply because he
is a criminal deportee.” Matter of Quijada-Aguilar, File No.
A092536869, at 4 (BIA Dec. 9, 2011). But despite evidence
in the record regarding the persecution of his family, the BIA
concluded that Quijada-Aguilar did “not contest the denial
of his [CAT] claim based on the past experiences of his
family,” thus waiving that issue on appeal. Id.
Quijada-Aguilar argues that remand is necessary
because the BIA’s refusal to consider record evidence
regarding the likelihood of future torture based on his family
affiliation was improper. We agree. CAT’s implementing
regulations require the agency to consider “all evidence
relevant to the possibility of future torture.” 8 C.F.R.
§ 1208.16(c)(3). CAT claims must be considered in terms
of the aggregate risk of torture from all sources, and not as
separate, divisible CAT claims. Cole v. Holder, 659 F.3d
762, 775 (9th Cir. 2011) (stating that the consideration of the
QUIJADA-AGUILAR V. LYNCH 11
risk of torture must “tak[e] into account all possible sources
of torture”). Here, Quijada-Aguilar’s focus in his brief
before the BIA on his status as a criminal deportee should
not be construed as a waiver of any reliance on torture arising
from family affiliation. Rather, once Quijada-Aguilar
appealed the IJ’s denial of deferral of removal under CAT to
the BIA, the BIA was required to consider “all evidence
relevant to the possibility of future torture,” 8 C.F.R.
§ 1208.16(c)(3), including evidence based on family
affiliation, in keeping with the regulation requiring the
agency to evaluate a CAT claim in light of the aggregate risk
of torture from all sources, see Cole, 659 F.3d at 775.
Accordingly, we grant and remand on this additional ground
so that the BIA can evaluate Quijada-Aguilar’s claim for
deferral of removal under CAT by considering the aggregate
risk of torture arising from Quijada-Aguilar’s family
affiliation together with the risk arising from his status as a
criminal deportee.
GRANTED AND REMANDED.