Quijada-Aguilar v. Lynch, No. 12-70070 (9th Cir. 2015)
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Petitioner, a citizen of El Salvador, seeks review of the BIA's denial of his applications for withholding of removal under the Immigration and Nationality Act INA), 8 U.S.C. 1231(b)(3)(B), and the Convention Against Torture (CAT). The court held that California Penal Code section 192(a) - the voluntary manslaughter statute that petitioner was convicted under - is not categorically a crime of violence because it encompasses a broader range of criminal intent than the federal definition of a crime of violence in 18 U.S.C. 16. Because a person may be
convicted of voluntary manslaughter under CPC 192(a) for reckless conduct - conduct that falls outside the definition of a crime of violence set forth in 18 U.S.C. 16 - the court concluded that section 192(a) is not categorically a crime of violence. Consequently, petitioner is not ineligible for withholding of removal based on having been convicted of an aggravated felony particularly serious crime. Therefore, the court granted the petition for review on this basis. The court granted the petition and remanded on the ground that the BIA was required to consider all evidence relevant to the possibility of future torture, so that the BIA can evaluate petitioner’s claim for deferral of removal under the CAT by considering the aggregate risk of torture arising from petitioner’s family affiliation together with the risk arising from his status as a criminal deportee.
Court Description: Immigration The panel granted Walter Quijada-Aguilar’s petition for review of the Board of Immigration Appeals’ denial of his applications for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture (CAT), as well as deferral of removal under CAT. The panel held that the BIA erred in finding that Quijada- Aguilar’s conviction and eleven-year sentence for voluntary manslaughter under California Penal Code § 192(a) constituted a categorical crime of violence and particularly serious crime (PSC). The panel held that because a person may be convicted under § 192(a) for reckless conduct, the statute encompasses a broader range of criminal intent than the federal definition of a crime of violence in 18 U.S.C. § 16, which requires intentional use of force or substantial risk that force will be intentionally used. The panel held that Quijada-Aguilar was thus not ineligible for withholding of removal based on having been convicted of an aggravated felony PSC, and granted his petition on that ground. The panel also granted and remanded for the BIA to evaluate Quijada-Aguilar’s claim for deferral of removal under CAT by considering the aggregate risk of torture arising from Quijada-Aguilar’s family affiliation together with the risk arising from his status as a criminal deportee.
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