AURORA OLEA-SEREFINA V. MERRICK GARLAND, No. 20-72231 (9th Cir. 2022)
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Petitioner petitioned for review of an order of the Board of Immigration Appeals (“BIA”) upholding the decision of the Immigration Judge (“IJ”) denying her application for cancellation of removal and ordering her removed to Mexico.
The Ninth Circuit denied in part and dismissed in part Petitioner’s petition and held that Petitioner’s conviction for corporal injury upon a child, in violation of California Penal Code Section 273d(a), is a crime of violence aggravated felony that made her ineligible for cancellation of removal. The court reasoned that The Immigration and Nationality Act (“INA”) defines “aggravated felony” to include a “crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. Section 1101(a)(43)(F). Thus, because Petitioner’s conviction records confirmed a jail term of 365 days, the court explained that whether Petitioner was convicted of an aggravated felony turned solely on whether a violation of Section 273d(a) constitutes a “crime of violence” under 18 U.S.C. Section 16.
The court explained that the relevant language of Section 273d(a) imposes criminal punishment on any “person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The BIA noted that this phrasing is very similar to California Penal Code Section 273.5(a), which punishes any “person who willfully inflicts corporal injury resulting in a traumatic condition upon” specified persons. The court rejected the remaining challenges to Petitioner’s removal order
Court Description: Immigration. Denying in part and dismissing in part Zerefina Aurora Olea Daza’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Olea’s conviction for corporal injury upon a child, in violation of California Penal Code § 273d(a), is a crime of violence aggravated felony that made her ineligible for cancellation of removal. The Immigration and Nationality Act (“INA”) defines “aggravated felony” to include a “crime of violence (as defined in section 16 of title 18 . . .) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Because Olea’s conviction records confirmed a jail term of 365 days, the panel explained that whether Olea was convicted of an aggravated felony turned solely on whether a violation of § 273d(a) constitutes a “crime of violence” under 18 U.S.C. § 16. Section 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The panel explained that, under the categorical approach, the key question here was whether the offense defined in § 273d(a) contains, as an element, the actual, attempted, or threatened use of “physical force,” which the Supreme Court has held means “violent physical force,” – that is, force capable of causing physical pain or injury. OLEA-SEREFINA V. GARLAND 3 The panel explained that the relevant language of § 273d(a) imposes criminal punishment on any “person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The BIA noted that this phrasing is very similar to California Penal Code § 273.5(a), which punishes any “person who willfully inflicts corporal injury resulting in a traumatic condition upon” specified persons. Because this court has held that a violation of § 273.5(a) is categorically a crime of violence, the BIA concluded that the same must be true for § 273d(a), which includes comparable language and which, in all events, requires physical harm to the child. Olea contended that the statutes differ in a way that renders this court’s analysis of § 273.5(a) inapplicable to § 273d(a). Specifically, Olea noted that this court held that § 273.5(a) is a crime of violence because the plain terms of the statute require a person willfully to inflict upon another person a traumatic condition. By contrast, she contended that § 273d(a) does not categorically require a traumatic condition or even a corporal injury. The panel disagreed, explaining that under the California courts’ binding determination of the elements of a violation of § 273d(a), any conviction under § 273d(a) requires proof that the “punishment” or “injury” resulted in a “traumatic condition.” The panel also noted that § 273d(a) requires that the punishment or injury be inflicted willfully, and the California courts have held that “willfully inflicted” requires “a direct application of force by the defendant upon the victim.” In light of this understanding of the elements of § 273d(a) as construed by the California courts, the panel concluded that a violation of that statute is categorically a crime of violence under this court’s precedent. 4 OLEA-SEREFINA V. GARLAND The panel rejected the remaining challenges to Olea’s removal order. First, the panel concluded that the agency did not abuse its discretion in denying Olea a further continuance, explaining that the IJ generously afforded her eight continuances and the fact that, after more than four years, Olea claimed to have hired an attorney (but no appearance was entered by any attorney and none appeared at her hearing) did not require the IJ to grant yet another continuance. Second, the panel concluded that the BIA properly rejected Olea’s contentions that the IJ had violated her due process rights by failing to develop the record, explaining that the IJ adequately explored the possibility of asylum with Olea and provided her with an application. Finally, the panel determined that it lacked jurisdiction to review the agency’s denial of voluntary departure. The panel explained that her constitutional claims were purely conclusory and devoid of supporting factual detail or legal argument, and therefore, the panel deemed any such claim to be forfeited. The panel also noted that Olea’s assertion that the agency did not properly weigh the equities in denying voluntary departure is precisely what INA § 240B(f) precludes the court from reviewing.
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