Opinion
No. 14-71920
01-12-2016
MANUEL JESUS LOPEZ-ISLAVA, AKA Manuel Jesus Islava-Lopaz, AKA Manuel De Jesus Lopez, AKA Manuel DeJesus Lopez Islava, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A092-446-307 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 20, 2015 San Francisco, California Before: W. FLETCHER, RAWLINSON, and PARKER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
Petitioner Manuel Jesus Lopez-Islava (Lopez-Islava) petitions for review of a decision of the Board of Immigration Appeals (BIA) determining that Lopez-Islava's conviction for residential burglary under Arizona Revised Statute § 13-1507 was an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(F). Specifically, the BIA determined that Lopez-Islava's burglary offense constituted a crime of violence under 18 U.S.C. § 16(b).
18 U.S.C. § 16(b) defines a crime of violence as a felony offense "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." --------
However, we conclude that our recent decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), controls the outcome of this case. In Dimaya, we adhered to the rationale articulated in Johnson v. United States, 135 S. Ct. 2551, 2558 (2015), where the Court held that the residual clause defining a violent felony under the Armed Career Criminal Act of 1984 was unconstitutionally vague. We held that the similar "residual clause definition of a violent felony [under 18 U.S.C. § 16(b)] is unconstitutionally vague. . . ." Dimaya, 803 F.3d at 1111 (internal quotation marks omitted). We are bound by this precedent, which does not support the BIA's determination.
The petition for review is GRANTED and we REMAND to the BIA for further proceedings consistent with this disposition.