Estrada-Rodriguez v. Mukasey ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ALEJANDRO ESTRADA- 
RODRIGUEZ,
No. 06-75064
Petitioner,
v.  Agency No.
A44-565-408
MICHAEL B. MUKASEY,* Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 7, 2007—San Francisco, California
Filed December 28, 2007
Before: Dorothy W. Nelson and Carlos T. Bea,
Circuit Judges, and Louis F. Oberdorfer,** Senior Judge.
Opinion by Judge D.W. Nelson
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
**The Honorable Louis F. Oberdorfer, Senior United States District
Judge for the District of Columbia, sitting by designation.
16857
ESTRADA-RODRIGUEZ v. MUKASEY 16859
COUNSEL
Jose A. Bracamonte, Law Office of Jose A. Bracamonte,
Phoenix, Arizona, for the petitioner.
Eric W. Marsteller and Kristin K. Edison, United States
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for the respondent.
OPINION
D.W. NELSON, Senior Circuit Judge:
Oscar Alejandro Estrada-Rodriguez seeks review of the
Board of Immigration Appeals’ (“BIA”) determination that he
16860 ESTRADA-RODRIGUEZ v. MUKASEY
was removeable as an aggravated felon based upon his con-
viction for resisting arrest under Arizona Revised Statutes
§ 13-2508. The BIA characterized § 13-2508 as a crime of
violence under 8 U.S.C. § 1101(a)(43)(F), which classifies
crimes of violence as aggravated felonies. Estrada-Rodriguez
petitions this court to find that his offense does not constitute
a crime of violence under categorical or modified categorical
analysis. We deny review and hold that resisting arrest under
Arizona Revised Statutes § 13-2508 categorically constitutes
a crime of violence.
FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 2002, Oscar Alejandro Estrada-
Rodriguez was convicted of resisting arrest in violation of
Arizona Revised Statutes § 13-2508 and sentenced to one
year of imprisonment. Part A of § 13-2508 defines resisting
arrest as either (1) “[u]sing or threatening to use physical
force against the peace officer or another;” or (2) “[u]sing any
other means creating a substantial risk of causing physical
injury to the peace officer or another.” ARIZ. REV. STAT. § 13-
2508. Neither the complaint nor the conviction document
specified which sub-section of the statute Estrada-Rodriguez
violated.
On September 8, 2004, the Department of Homeland
Security (“DHS”) served Petitioner with a Notice to Appear.
The Notice alleged removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii) because Estrada-Rodriguez had been con-
victed of a “crime of violence” classified as an “aggravated
felony” under 8 U.S.C. § 1101(a)(43)(F). Estrada-Rodriguez
filed a motion to terminate removal proceedings on the
grounds that his offense did not constitute a crime of violence.
Originally, the immigration judge (“IJ”) granted Estrada-
Rodriguez’s motion to terminate. The IJ reasoned that § 13-
2508 was divisible into two subsections; the record was
unclear as to which subsection sustained the conviction; and
ESTRADA-RODRIGUEZ v. MUKASEY 16861
the IJ believed that subsection (A)(2) did not categorically
constitute a crime of violence.
In November 2004, DHS filed a notice of appeal to the BIA
questioning “whether subsection (A)(2) of the Arizona statute
constitutes a crime of violence, for purposes of charging
[Estrada-Rodriguez] with an ‘aggravated felony’ under immi-
gration law.” The BIA sustained the appeal and defined
“crime of violence” by reference to 18 U.S.C. § 16. The BIA
found that resisting arrest under Arizona Revised Statutes
§ 13-2508(A)(2) did not categorically constitute a crime of
violence under § 16(a), and focused its inquiry on § 16(b).1
The BIA reasoned that because resisting arrest involves a risk
that physical force might be required in commission of the
crime, violation of § 13-2508 categorically qualifies as a
crime involving violence under 18 U.S.C. § 16(b). The BIA
remanded the matter to the IJ for further proceedings.
On remand, the IJ acknowledged that he was bound by the
BIA’s determination that Estrada-Rodriguez’s conviction con-
stitutes an aggravated felony. Having been convicted of an
aggravated felony, Estrada-Rodriguez was ineligible for any
relief. The IJ ordered Estrada-Rodriguez removed to Mexico.
On September 28, 2006, the BIA affirmed the IJ’s decision
without opinion. Estrada-Rodriguez petitioned for review on
October 26, 2006.
JURISDICTION
This court has jurisdiction over questions of law raised
within petitions for review pursuant to 8 U.S.C.
§ 1252(a)(2)(D). Whether an offense constitutes an aggra-
vated felony is a question of law. Martinez-Perez v. Gonzales,
1
Section 16(b) defines a crime of violence as “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.”
16862 ESTRADA-RODRIGUEZ v. MUKASEY
417 F.3d 1022, 1025 (9th Cir. 2005). Therefore, this court has
jurisdiction to review the BIA’s characterization of the
offense as an aggravated felony. Id. Because we characterize
Estrada-Rodriguez’s offense as an aggravated felony, INA
§ 242(a)(2)(C) prohibits judicial review of the IJ’s final order
of removal. 8 U.S.C. § 1252(a)(2)(C).
STANDARD OF REVIEW
“Whether an offense is an aggravated felony under 8
U.S.C. § 1101(a) is a legal question reviewed de novo.”
Martinez-Perez, 417 F.3d at 1025. Although BIA interpreta-
tions of immigration statutes are entitled to some deference,
Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003), “in-
terpretations promulgated in a non-precedential manner are
‘beyond the Chevron pale.’ ” Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1012 (9th Cir. 2006) (quoting United States
v. Mead Corp., 533 U.S. 218, 226 (2001)). The BIA’s deci-
sion in this case was neither published nor marked as prece-
dential. Consequently, the applicable standard of review is the
Skidmore “power to persuade” standard. Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944).
DISCUSSION
I. CATEGORICAL APPROACH
[1] “Crime[s] of violence,” which constitute aggravated fel-
onies under 8 U.S.C. § 1101(a)(43)(F), are defined by refer-
ence to 18 U.S.C. § 16. This court uses the categorical
approach laid out in Taylor v. United States, 495 U.S. 575(1990), to determine whether an offense qualifies as a crime
of violence under 18 U.S.C. § 16. See, e.g., Ruiz-Morales v.
Ashcroft, 361 F.3d 1219, 1221-22 (9th Cir. 2004). We first
“make a categorical comparison of the elements of the statute
of conviction to the generic definition, and decide whether the
conduct proscribed [by the state statute] is broader than, and
so does not categorically fall within, this generic definition.”
ESTRADA-RODRIGUEZ v. MUKASEY 16863
Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.
2003). When applying the categorical approach, we “look to
the elements and the nature of the offense of conviction,
rather than to the particular facts relating to petitioner’s
crime.” Leocal v. Ashcroft, 543 U.S. 1, 6-7 (2004).
A. STATUTORY LANGUAGE
Arizona’s resisting arrest statute reads:
A. A person commits resisting arrest by intention-
ally preventing or attempting to prevent a person rea-
sonably known to him to be a peace officer, acting
under color of such peace officer’s official authority,
from effecting an arrest by:
1. Using or threatening to use physical
force against the peace officer or another;
or
2. Using any other means creating a sub-
stantial risk of causing physical injury to
the peace officer or another.
B. Resisting arrest is a class 6 felony.
ARIZ. REV. STAT. § 13-2508. The panel must determine
whether any crime encompassed by § 13-2508 falls outside
the 18 U.S.C. § 16 statutory definition of crime of violence:
(a) 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
(b) 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.
16864 ESTRADA-RODRIGUEZ v. MUKASEY
18 U.S.C. § 16. By the plain language of the statutes, all con-
duct that might violate § 13-2508(A)(1) would also fall within
18 U.S.C. § 16(a). The argument on appeal focuses on the
relationship between § 13-2508(A)(2) and 18 U.S.C. § 16(b).
B. PHYSICAL FORCE UNDER 18 U.S.C. § 16(b)
[2] The Supreme Court clarified the scope of 18 U.S.C.
§ 16(b) in Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). Accord-
ing to the Court, this section:
covers offenses that naturally involve a person acting
in disregard of the risk that physical force might be
used against another in committing an offense. The
reckless disregard in § 16 relates not to the general
conduct or to the possibility that harm will result
from a person’s conduct, but to the risk that the use
of physical force against another might be required
in committing a crime.
Id. The Court illustrated its point by commenting in dicta that
a burglary constitutes a crime of violence because “burglary,
by its nature, involves a substantial risk that the burglar will
use force. . . .” Id. In contrast, the DUI at issue in Leocal did
not constitute a crime of violence because such crimes must
have “a higher mens rea than [ ] merely accidental or negli-
gent conduct. . . .” Id. at 11.
[3] Violation of § 13-2508(A) requires intentional action,
which satisfies the mens rea requirement of Leocal. Addition-
ally, resisting arrest naturally involves the risk that physical
force may be used against an officer. In State v. Womack, 847
P.2d 609, 613 (Ariz. Ct. App. 1992), an Arizona appellate
court decided that nonviolent flight from an attempted arrest
did not constitute resisting arrest under § 13-2508(A)(2). The
court favorably quoted the Arizona Criminal Code Commis-
sion’s commentary that “[n]either [nonviolent] nonsubmission
nor flight are covered” by resisting arrest statutes. Id. at 612.
ESTRADA-RODRIGUEZ v. MUKASEY 16865
The court cited the proposition that “[t]here must be actual
opposition or resistance, making necessary, under the circum-
stances, the use of force.” Id. at 613 (quoting State v.
Avnayim, 185 A.2d 295, 298-99 (Conn. App. Ct. 1962)).
[4] When persons undertake resisting arrest under § 13-
2508(A)(2), they take the chance that the incident will esca-
late and that “the use of physical force against another might
be required in committing [the] crime.” Leocal, 543 U.S. at
10. Under this reasoning, § 13-2508(A) comports with the
interpretation of 18 U.S.C. § 16(b) advanced by the Supreme
Court in Leocal.
CONCLUSION
[5] For the foregoing reasons, we hold that resisting arrest
under Arizona Revised Statutes § 13-2508 is categorically an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F), as defined
by 18 U.S.C. § 16.
PETITION FOR REVIEW DENIED.