Summary
In Purohit, the Ninth Circuit reasoned that a crime of violence requires intentional use of force, whereas a defendant can violate Penal Code section 192(a) by the reckless use of force.
Summary of this case from United States v. Perez-JuarezOpinion
Nos. 08-75027, 09-73998.
Submitted March 16, 2011 San Francisco, California.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
June 30, 2011.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A036-001-632 Agency No. A036-001-632.
Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition.
The Board of Immigration Appeals (BIA) properly rejected Purohit's argument that voluntary manslaughter under California Penal Code § 192(a) does not necessarily involve the use of physical force, see 18 U.S.C. § 16(b); see also 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). We have rejected this contention with respect to involuntary manslaughter under California Penal Code § 192(b), which is materially identical in all relevant respects to voluntary manslaughter under California Penal Code § 192(a). See Park v. INS, 252 F.3d 1019, 1022 (9th Cir. 2001), overruled in part on other grounds by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).
However, under our recent cases, such as Covarrubias Teposte v. Holder, 632 F.3d 1049, 1052-55 (9th Cir. 2011), which applied the "intentional force" requirement established by Fernandez-Ruiz, 466 F.3d at 1132, we hold that California Penal Code § 192(a) is not categorically a crime of violence because it can be committed through the reckless use of force, see People v. Rios, 2 P.3d 1066, 1073 n. 7 (Cal. 2000); People v. Lasko, 999 P.2d 666, 672 (Cal. 2000). We remand for the BIA to "address the modified categorical approach in the first instance." Cortez-Guillen v. Holder, 623 F.3d 933, 936 (9th Cir. 2010) (citing INS v. Ventura, 537 U.S. 12 (2002) (per curiam)).
Although Purohit did not raise this particular question in his briefing to the BIA, he has adequately exhausted the question of whether a conviction under California Penal Code § 192(a) constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873-74 (9th Cir. 2008). We therefore have jurisdiction over this question. 8 U.S.C. § 1252(d)(1).
We have jurisdiction over Purohit's challenge to the BIA's denial of relief under the Convention Against Torture, Edu v. Holder, 624 F.3d 1137, 1141-42 (9th Cir. 2010), and the BIA's denial of Purohit's motion to reopen proceedings, Sharma v. Holder, 633 F.3d 865, 868 (9th Cir. 2011). Substantial evidence supports the BIA's findings regarding the likelihood of torture, see Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009), as Purohit's evidence does not compel the conclusion that he is both likely to be imprisoned on account of his proselytizing and likely to be tortured if he is imprisoned, cf. Khup v. Ashcroft, 376 F.3d 898, 907 (9th Cir. 2004). Likewise, Purohit's evidence does not compel the conclusion that he is likely to be a victim of anti-Christian violence. "We are not in a position to second-guess the [BIA's] construction of the somewhat contradictory" State Department reports submitted by Purohit. Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008). The evidence submitted in Purohit's motion to reopen does not establish that it was "more likely than not" that he would be tortured, Cano-Merida v. INS, 311 F.3d 960, 965-66 (9th Cir. 2002), and the BIA accordingly was within its discretion to deny the motion, e.g., Gui v. INS, 280 F.3d 1217, 1230 (9th Cir. 2002).
Each party shall bear its own costs.
PETITION GRANTED IN PART AND DENIED IN PART; REMANDED.