Conviction for Brandishing a Firearm Qualifies as Crime of Violence – Immigration Court

At JCS Immigration and Visa Law Office we have handled many cases and represented hundreds of immigrants in Los Angeles Immigration Court. We have provided safe and effective legal representation and helped keep many Southern California families together. The following is a publication from the United States Court of Appeals for the Ninth Circuit, Los Angeles Immigration Court. This is a formal publication of a review of an order of the Department of Justice’s Board of Immigration Appeals that was argued and submitted July 11, 2013 in Pasadena, California.

Conviction for Brandishing a Firearm Qualifies as Crime of Violence

The Board of Immigration Appeals (“BIA”, “Board”) panel dismissed William Ernesto Jimenez Bolanos’ petition for review of the decision of the BIAs finding him statutorily ineligible for cancellation of removal and asylum based on his conviction for brandishing a firearm in the presence of the occupant of a motor vehicle, in violation of California Penal Code Section 417.3.

The panel held that CPC Section 417.3 qualifies categorically as an aggravated felony crime of violence under 18 USC Section 16(a), because it has an element the threatened use of physical force against another person.

Ninth Circuit Judge Graber’s opinion is that this immigration case raises a single issue, whether a conviction under California Penal Code Section 417.2 counts categorically as a “crime of violence” and therefore as an “aggravated felony” because of which the convicted person is ineligible for cancellation of removal? The Board answers yes and accordingly dismisses the petition.

Factual Background on the Case

The petitioner, William Ernesto Jimenez Bolanos, is a native and citizen of El Salvador. He entered the United States as a Lawful Permanent Resident in 1999. About ten years later, the petitioner pleaded guilty to, and was therefore convicted of, brandishing a firearm in the presence of the occupant of a motor vehicle, in violation of California Penal Code Section 417.3. He received a 16-month sentence plus a stayed two-year sentence because of the gang-related nature of the offense.

The Department of Homeland Security then issued to the petitioner, a Notice to Appear (NTA), charging that he was removable under 8 USC Section 1227(a)(2)(C) because, after admission, he was convicted of a firearm offense. He admitted the factual allegations in the notice but sought cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found held that the petitioner’s conviction was for a “crime of violence” as defined in 8 USC Section 1101(a)(43)(F), making the petitioner statutorily ineligible for cancellation of removal under 8 USC Section 1229b(a)(3) and for asylum under 8 USC Section 1158(b)(2)(A)(ii) and (b)(2)(B)(I). Furthermore, the IJ denied withholding of removal and CAT relief on the merits.

Conclusion

In summary, California Penal Code Section 417.3 qualifies categorically as a crime of violence under 18 USC Section 16(a). For that reason, the petitioner is an aggravated felon who is ineligible for cancellation of removal under 8 USC Section 1229b(a)(3). The petition is dismissed and the respondent is ordered removed from the United States.

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