Hernandez v. Lynch, No. 11-72286 (9th Cir. 2016)
Annotate this CasePetitioner, a legal permanent resident, seeks review of the BIA's decision finding him removable and ineligible for cancellation of removal. The court concluded that petitioner's conviction for attempted criminal threats, under California Penal Code sections 422 and 664, constitutes an aggravated felony for which he is removable. First, attempted criminal threats is categorically a crime of violence as defined under 18 U.S.C. 16(a). Second, the California superior court designated the conviction as a felony and imposed a sentence of “at least one year.” Accordingly, petitioner is removable under 8 U.S.C. 1101(a)(43)(F) and is ineligible for cancellation of removal. The court denied the petition.
Court Description: Immigration. The panel denied Javier Arellano Hernandez’s petition for review of the Board of Immigration Appeals’ decision finding him removable and ineligible for cancellation of removal because his conviction for attempted criminal threats constitutes a crime of violence and aggravated felony. The panel held that Arellano Hernandez’s conviction for criminal threats under California Penal Code § 422 is a categorical crime of violence, and that the § 664 “attempt” portion did not alter the crime of violence determination. The panel also held that Arellano Hernandez’s § 422 conviction, which is a wobbler offense punishable under California law as a felony or misdemeanor, is an aggravated felony because the superior court designated it a felony and sentenced him to 365 days in jail. The panel thus found Arellano Hernandez removable pursuant to 8 U.S.C. § 1101(a)(43)(F) and ineligible for cancellation of removal. ARELLANO HERNANDEZ V. LYNCH 3
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