Ramirez v. Lynch, No. 08-72896 (9th Cir. 2016)
Annotate this CasePetitioner, a native and citizen of El Salvador, petitioned for review of the BIA's decision that his California conviction for felony child abuse, under California Penal Code section 273a(a), constitutes a crime of violence and qualifies as an aggravated felony. The court concluded that section 273a(a) is not a divisible statute because the alternative mens rea requirements are not “elements." Rather, they are alternative means for accomplishing a single indivisible crime. Under the categorical approach, section 273a(a) is broader than 18 U.S.C. 16, and therefore not a “crime of violence,” nor does it qualify on that basis as an aggravated felony. Therefore, the BIA erred when it determined that petitioner had been convicted of an aggravated felony. Accordingly, the court granted the petition and remanded.
Court Description: Immigration. The panel granted Hector Giovanni Ramirez’s petition for review of the Board of Immigration Appeals’ decision that his conviction for felony child abuse under California Penal Code § 273a(a) constitutes a crime of violence under 18 U.S.C. § 16 and is therefore an aggravated felony. The panel held that § 273a(a) does not qualify as a categorical crime of violence because it is broader than the generic federal definition in 18 U.S.C. § 16. The panel also found that § 273a(a) is not a divisible statute, because the alternative mens rea requirements are not elements but are rather alternative means for accomplishing a single indivisible crime. The panel thus found that Ramirez’s conviction does not constitute an aggravated felony.
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