Carjacking Is Not a Violent Crime That Warrants Deportation

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California law, not a federal statute, governs whether carjacking qualifies as an aggravated felony that justifies a deportation penalty. The Ninth U.S. Circuit Court of Appeals ruled on July 2 that a man convicted of carjacking without force may remain in the United States. This ruling partially denied the defendant’s petitions for review of decisions by an immigration judge (IJ) from the Board of Immigration Appeals (BIA), which had dismissed his appeal of an IJ’s order that he was “removable” because of his conviction of an aggravated felony and two previous conviction for crimes of moral turpitude.

Sergio Manrique Gutierrez emigrated to the U.S. from El Salvador when he was a child in 1986 and became a permanent resident shortly thereafter. He was convicted of felony hijacking in 2006 in violation of California Penal Code § 215(a). Carjacking, which is the crime of forcefully stealing an unoccupied car from its driver, is defined under the State Penal Code as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence… or from a passenger…against his or her will and with the intent to either permanently or temporarily deprive the person of possession, accomplished by means of force or fear.” The statute states that carjacking is charged as a felony, and the perpetrator could “face up to nine years in prison.”

A unanimous three-justice panel of the Ninth Circuit composed of Circuit Judges Richard R. Clifton, Johnnie B. Rawlinson, and Andrew D. Hurwitz considered a number of consolidated petitions by Gutierrez. Clifton, who wrote the opinion, began with a recap of the “complicated” procedural steps and changes in the law that led to their current ruling.

In summary, after a series of petitions and holdings, the Ninth Circuit consolidated Gutierrez’s requests that asked for four new rulings to determine: whether carjacking is an aggravated crime of violence in California; whether the BIA made errors when it ruled he waived challenges to the moral turpitude removal charge; whether the IJ abused their discretion by reopening his case; and whether the BIA abused its discretion when it denied his application for protection under the federal Convention Against Torture (CAT).

The justices first determined that Gutierrez’s conviction under § 215(a) was not a “categorical crime of violence because fear alone is enough to convict without the use, attempted use, or threatened use of physical force.” The Ninth Circuit ruling went on to distinguish the difference between § 215(a) and 18 U.S.C. U.S.C. § 16(a), which both define generic crimes of violence. The federal law, Clifton explained, “…requires a higher level of intent for the use of force” than does § 215(a) because prosecutors must prove “the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Section 215 (a) does not require force.

As a result, the panel reversed the BIA “to the extent that it held (that) Gutierrez (is) removable for having committed an aggravated felony crime of violence.” Clifton noted that previous cases, including

Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), ruled that carjacking is not a “categorical crime of violence” in the State because it did not require the heightened violent force required by other cases.

The Ninth Circuit also concluded that the BIA erred when it determined that Gutierrez “waived his challenge to the moral turpitude charges.” This part of the defendant’s case was remanded to the BIA to determine whether Gutierrez is still removable due to his previous convictions since the moral turpitude removal change is now the only remaining charge that could cause his deportation.

In addition, the appellate court dismissed the petitioner’s request to review his case because the Ninth Circuit does not have jurisdiction to determine the effect of a change in the law. Similarly, the panel denied Gutierrez’s petition to dismiss other rulings made by the IJ, including its denial of protection under the Convention Against Torture (CAT). The IJ made these rulings sua sponte, or as voluntary actions taken without first receiving a motion from either of the parties. Clifton wrote that the Ninth Circuit thus lacked jurisdiction over these claims.

Regarding the CAT protection, the Circuit Court explained that to receive it, Gutierrez had to establish that it was “more likely than not that (he) would be tortured if returned to El Salvador.” The petitioner alleged that if he returned, he would quickly be identified as a rival gang member because of his tattoos and that identification would lead to his being tortured. Clifton wrote that “such a generalized fear does not support reversal of the agency’s denial of CAT protection.”

The IJ made an additional ruling against Gutierrez based on what they called his lack of credibility. To this claim, Gutierrez argued that the finding was made without the IJ articulating a legitimate basis for questioning his trustworthiness. The Ninth Circuit explained that the BIA’s decision could only be reversed if “the petitioner’s evidence was so compelling that no reasonable factfinder could find he was not credible.” This was not the case. Clifton wrote that the “BIA provided specific and cogent reasons in support of its adverse ruling” because he lied about a petty theft conviction and gave inconsistent testimony about other charges brought against him. In addition, petitioner’s claims about BIA’s abuse of discretion for not permitting consideration of his psychological evaluation by a doctor and his claims of ineffective counsel were also denied.

In summary, Gutierrez’s numerous and various consolidated petition claims resulted in the Ninth Circuit’s holding that carjacking is not a crime of violence under California law, so Gutierrez’s petition was granted and the BIA reversed regarding his mandatory removal. Also, the Court ruled that the BIA erred when it determined he was not removable for his dual moral turpitude crimes, so that part of his petition was granted and remanded for further consideration. All his other claims were dismissed.

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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