Delgado-Hernandez v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BORIS EDEMBER DELGADO- 
HERNANDEZ,
No. 08-70789
Petitioner,
v.  Agency No.
A029-273-534
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 1, 2009*
Seattle, Washington
Filed September 9, 2009
Before: Michael Daly Hawkins, M. Margaret McKeown and
Jay S. Bybee, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
12883
DELGADO-HERNANDEZ v. HOLDER 12885
COUNSEL
Jaime Lasso, Westlake Village, California for the petitioner.
T. Bo Stanton, Trial Attorney and Susan K. Houser, Senior
Litigation Counsel, Office of Immigration Litigation, Wash-
ington, D.C. for the respondent.
OPINION
PER CURIAM:
Boris Edember Delgado-Hernandez (“Delgado”) seeks
review of a final order of removal based on the Board of
Immigration Appeals’ (“BIA”) determination that his convic-
tion for attempted kidnapping under California Penal Code
12886 DELGADO-HERNANDEZ v. HOLDER
§ 207(a) is an aggravated felony because it is categorically a
crime of violence.1 We agree and deny the petition.
Delgado, a citizen of El Salvador, was lawfully admitted to
the United States on July 23, 2001, and became a lawful per-
manent resident in 2003. He pled guilty to the attempted kid-
napping of his cousin on April 12, 2006, and was sentenced
to eighteen months in prison. The Department of Homeland
Security initiated removal proceedings against Delgado in
September of 2006, charging him as removable under INA
§ 237(a)(2)(A)(iii) as an alien convicted of an aggravated fel-
ony under INA § 101(a)(43)(F). The Immigration Judge
found that attempted kidnapping under California Penal Code
§ 207(a) was an aggravated felony. Delgado timely appealed
and the BIA affirmed the decision in an unpublished opinion.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), which
provides for judicial review of final orders of removal, and
under 8 U.S.C. § 1252(a)(2)(D), which provides for judicial
review of constitutional and legal questions raised by petition-
ers found removable based on criminal activity. “[W]e review
de novo the BIA’s determination of questions of law, except
to the extent that deference is owed to its interpretation of the
governing statutes and regulations.” Garcia-Quintero v. Gon-
zales, 455 F.3d 1006, 1011 (9th Cir. 2006). Because the BIA
resolved this appeal in an unpublished decision, we defer to
its interpretation of the INA only to the extent we find it per-
suasive. See id. at 1014-15.
[1] An “aggravated felony” under INA § 101(a)(43)(F)
means “a crime of violence (as defined in section 16 of Title
1
Delgado also appealed the BIA’s determination that he is ineligible for
withholding of removal, asylum, and Convention Against Torture relief
because he committed a particularly serious crime. Because Delgado did
not properly brief the issue, he has waived this claim. See Singh v. Ash-
croft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004) (“Issues not raised in an
appellant’s opening brief are typically deemed waived.”).
DELGADO-HERNANDEZ v. HOLDER 12887
18, but not including a purely political offense) for which the
term of imprisonment [is] at least one year.” Title 18 U.S.C.
§ 16, in turn, defines the term “crime of violence” as:
(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.
Under INA § 101(a)(43)(U), attempts to commit an aggra-
vated felony are treated as if they are completed commissions
of the aggravated felony. Delgado does not dispute that his
conviction carries a term of imprisonment of at least one year,
but argues that it does not qualify as a crime of violence.
[2] In determining whether an offense qualifies as an aggra-
vated felony under INA § 101(a)(43)(F), we apply the “cate-
gorical approach” to determine whether the “full range of
conduct covered by” the relevant state criminal statute “falls
within the meaning of” crime of violence under 18 U.S.C.
§ 16. Penuliar v. Mukasey, 528 F.3d 603, 609 (9th Cir. 2008)
(internal quotation marks omitted).
California Penal Code § 207(a) defines kidnapping as
“forcibly, or by any other means of instilling fear, steal[ing]
or tak[ing], or hold[ing], detain[ing], or arrest[ing] any person
in this state, and carr[ying] the person into another country,
state, or county, or into another part of the same county.”
[3] Because kidnapping under § 207(a) can be committed
by “instilling fear” instead of by force, it does not qualify as
a crime of violence under § 16(a). It does qualify, however,
under § 16(b). Although it is possible to commit kidnapping
without physical force, in the ordinary case force will be pres-
12888 DELGADO-HERNANDEZ v. HOLDER
ent and, in any event, all kidnapping cases carry a substantial
risk that force will be used. See James v. United States, 550
U.S. 192, 207-08 (2007) (the correct inquiry in applying the
categorical approach to determine whether a crime carries “a
risk of physical injury to others” is whether “the conduct
encompassed by the elements of the offense, in the ordinary
case, presents” such a risk).
[4] Kidnapping under § 207(a) inherently involves a direct
confrontation with a victim who is forced or frightened into
being moved involuntarily. This sort of confrontation involves
the strong probability that the kidnapper will need to “use
physical force . . . to accomplish his illegal purpose.” Malta-
Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007).
Even if a kidnapper sets out to commit the crime via “instill-
ing fear” instead of actual force, there is a substantial risk
“that the incident will escalate and that ‘the use of physical
force might be required in committing [the] crime,’ ” particu-
larly if the victim resists. Estrada Rodriguez v. Mukasey, 512
F.3d 517, 521 (9th Cir. 2007) (quoting Leocal v. Ashcroft, 543
U.S. 1, 10 (2004).
Our conclusion follows from our long-standing case law
deeming convictions under similar kidnapping statutes to be
crimes of violence. See United States v. Williams, 110 F.3d
50, 52-53 (9th Cir. 1997) (holding that second-degree kidnap-
ping under Oregon law qualified as a crime of violence under
the United States Sentencing Guidelines because of the “in-
herent risk of physical injury” even if the crime is committed
by deception rather than by force); United States v. Lonczak,
993 F.2d 180, 181-83 (9th Cir. 1993) (child stealing under
California law, a similar offense to kidnapping, is a crime of
violence under the United States Sentencing Guidelines even
if it is committed by “fradulently” “enticing” a child away
from the child’s parent because of the risk of “physical inju-
ry” to the victim); United States v. Sherbondy, 865 F.2d 996,
1009 (9th Cir. 1988) (kidnapping under the Model Penal Code
definition, even if accomplished via “trickery or deceit[,] . . . .
DELGADO-HERNANDEZ v. HOLDER 12889
entails ‘a serious potential risk of physical injury’ to the vic-
tim, making the offense a violent felony” under 18 U.S.C.
§ 924(e)(1)).
PETITION DENIED.