RODRIGUEZ-HERNANDEZ V. GARLAND, No. 21-456 (9th Cir. 2023)
Annotate this CaseIn a case before the United States Court of Appeals for the Ninth Circuit, Victor Rodriguez-Hernandez, a native and citizen of Mexico, was seeking review of a decision by the Board of Immigration Appeals (BIA). The BIA had dismissed his appeal of the denial of his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT) by an Immigration Judge (IJ). The court determined that Rodriguez-Hernandez's harassment conviction, under the Revised Code of Washington (RCW) § 9A.46.020(1), was categorically a crime of violence aggravated felony. This made him ineligible for discretionary relief from removal. The court also found that substantial evidence supported the denial of relief under the CAT. The court concluded that Rodriguez-Hernandez did not establish that it was more likely than not that he would be tortured with the consent or acquiescence of a public official. The court therefore denied his petition for review.
Court Description: Immigration. Denying Victor Rodriguez-Hernandez’s petition for review of a decision of the Board of Immigration Appeals, the panel concluded that: 1) Rodriguez-Hernandez’s harassment conviction, in violation of Revised Code of Washington (RCW) § 9A.46.020(1), was categorically for a crime of violence aggravated felony that made him ineligible for discretionary relief from removal; and 2) substantial evidence supported the denial of relief under the Convention Against Torture (CAT).
The panel explained that the Washington statute, as interpreted by the Washington courts, is not divisible. Thus, the panel concluded that the BIA correctly applied the categorical approach and, likewise, the panel could not look to the underlying facts to determine which subsection Rodriguez-Hernandez violated.
Rodriguez-Hernandez maintained that his conviction was not categorically for a crime of violence under 18 U.S.C.
§ 16(a) because RCW § 9A.46.020(1) criminalizes conduct that does not involve the use of physical force. Rejecting that contention, the panel explained that the statute, as interpreted by Washington courts, requires the “threatened use of physical force against the person or property of another,” as set out in 18 U.S.C. § 16(a). In addition, the panel explained that Rodriguez-Hernandez had not shown a realistic probability that Washington would apply RCW § 9A.46.020(1) to de minimis contact rather than force capable of causing physical pain or injury. As a result, the panel concluded that the BIA properly held that Rodriguez- Hernandez’s conviction was for a crime of violence aggravated felony that made him ineligible for cancellation of removal, asylum, and voluntary departure. As to CAT relief, the panel concluded that Rodriguez- Hernandez did not establish that it was more likely than not that he would be tortured with the consent or acquiescence of a public official. Although Rodriguez-Hernandez testified that his family received a threatening call warning that he would be kidnapped when he visited Mexico, Rodriguez-Hernandez was unable to identify who made the threats, his family did not make any payments, and he did not plan on visiting Mexico.
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